Exhibit
10.13


 


MICROBIA, INC.


 


TERMS OF AMENDED AND RESTATED LEASE


 


320 BENT STREET, CAMBRIDGE, MA


 


TABLE OF CONTENTS


 


	
  ARTICLE

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE 1: BASIC TERMS

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.01.

  	
  Date
  of Lease

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.02.

  	
  Landlord

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.03.

  	
  Tenant

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.04.

  	
  Tenant
  Guarantor

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.05.

  	
  Address
  of Property

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.06.

  	
  Building
  and Property

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.07.

  	
  Premises

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.08.

  	
  Tenant’s
  Pro Rata Share

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.09.

  	
  Term

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.10.

  	
  Commencement
  and Delivery Dates

  	
   

  	
  2

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.11.

  	
  Permitted
  Uses

  	
   

  	
  2

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.12.

  	
  Brokers

  	
   

  	
  2

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.13.

  	
  Management
  Company

  	
   

  	
  2

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.14.

  	
  Letter
  of Credit

  	
   

  	
  2

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.15.

  	
  Parking

  	
   

  	
  2

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.16.

  	
  Base
  Rent

  	
   

  	
  3

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.17.

  	
  Additional
  Rent

  	
   

  	
  3

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.18.

  	
  Expenses
  Paid Directly by Tenant

  	
   

  	
  3

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.19.

  	
  Address
  of Landlord for Notices

  	
   

  	
  3

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.20.

  	
  Address
  of Tenant for Notices

  	
   

  	
  4

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.21.

  	
  Finish
  Work

  	
   

  	
  4

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.22.

  	
  Finish
  Work Allowance

  	
   

  	
  4

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.23.

  	
  Base
  Building Work

  	
   

  	
  4

  



 


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  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  INDEX OF DEFINED TERMS

  	
   

  	
  4

  
	
  ARTICLE 2: PREMISES AND APPURTENANT RIGHTS

  	
   

  	
  7

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.01.

  	
  Lease
  of Premises; Appurtenant Rights

  	
   

  	
  7

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.02.

  	
  Right
  of First Offer

  	
   

  	
  8

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 3: LEASE TERM

  	
   

  	
  9

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.01.

  	
  Lease
  Term; Delay in Commencement

  	
   

  	
  9

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.02.

  	
  Hold
  Over

  	
   

  	
  9

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.03.

  	
  Right
  to Extend

  	
   

  	
  10

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 4: RENT

  	
   

  	
  12

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.01.

  	
  Base
  Rent

  	
   

  	
  12

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.02.

  	
  Additional
  Rent

  	
   

  	
  12

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.03.

  	
  Late
  Charge

  	
   

  	
  13

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.04.

  	
  Interest

  	
   

  	
  13

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.05.

  	
  Audit

  	
   

  	
  14

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 5: PROPERTY TAXES

  	
   

  	
  15

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.01.

  	
  Real
  Property Taxes

  	
   

  	
  15

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.02.

  	
  Definition
  of “Real Property Tax”

  	
   

  	
  15

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.03.

  	
  Personal
  Property Taxes

  	
   

  	
  16

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 6: UTILITIES

  	
   

  	
  16

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.01.

  	
  Utilities

  	
   

  	
  16

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 7: INSURANCE

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.01.

  	
  Coverage

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.02.

  	
  Avoid
  Action Increasing Rates

  	
   

  	
  18

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.03.

  	
  Waiver
  of Subrogation

  	
   

  	
  18

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.04.

  	
  Landlord’s
  Insurance

  	
   

  	
  19

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 8: COMMON AREAS

  	
   

  	
  19

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.01.

  	
  Common
  Areas

  	
   

  	
  19

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.02.

  	
  Use
  of Common Areas

  	
   

  	
  19

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.03.

  	
  Vehicle
  Parking

  	
   

  	
  20

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.04.

  	
  Operating
  Expenses

  	
   

  	
  20

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 9: USE OF PREMISES

  	
   

  	
  23

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.01.

  	
  Permitted
  Uses

  	
   

  	
  23

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.02.

  	
  Indemnification

  	
   

  	
  23

  



 


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  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.03.

  	
  Compliance
  With Legal Requirements

  	
   

  	
  23

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.04.

  	
  Environmental
  Substances

  	
   

  	
  25

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.05.

  	
  Signs
  and Auctions

  	
   

  	
  27

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.06.

  	
  Landlord’s
  Access

  	
   

  	
  28

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 10: CONDITION AND MAINTENANCE OF PREMISES AND PROPERTY 

  	
   

  	
  28 

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.01.

  	
  Existing
  Conditions

  	
   

  	
  28

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.02.

  	
  Exemption
  and Limitation of Landlord’s Liability

  	
   

  	
  28

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.03.

  	
  Landlord’s
  Obligations

  	
   

  	
  29

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.04.

  	
  Tenant’s
  Obligations

  	
   

  	
  33

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.05.

  	
  Alterations,
  Additions, and Improvements

  	
   

  	
  34

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.06.

  	
  Condition
  upon Termination

  	
   

  	
  37

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.07.

  	
  Decommissioning
  of the Premises

  	
   

  	
  37

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 11: ROOFTOP LICENSE; ANTENNAS

  	
   

  	
  39

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.01.

  	
  Rooftop
  License

  	
   

  	
  39

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.02.

  	
  Installation
  and Maintenance of Rooftop Equipment

  	
   

  	
  39

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.03.

  	
  Indemnification

  	
   

  	
  39

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.04.

  	
  Removal
  of Antenna

  	
   

  	
  40

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.05.

  	
  Interference
  by Antenna

  	
   

  	
  40

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.06.

  	
  Relocation
  of Antennas

  	
   

  	
  41

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 12: DAMAGE OR DESTRUCTION; CONDEMNATION

  	
   

  	
  41

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  12.01.

  	
  Repair
  and Restoration

  	
   

  	
  41

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  12.02.

  	
  Termination
  After Casualty

  	
   

  	
  42

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  12.03.

  	
  Termination
  After Taking

  	
   

  	
  42

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 13: ASSIGNMENT AND SUBLETTING

  	
   

  	
  42

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.01.

  	
  Landlord’s
  Consent Required

  	
   

  	
  42

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.02.

  	
  Landlord’s
  Consent

  	
   

  	
  43

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.03.

  	
  No
  Release of Tenant

  	
   

  	
  44

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.04.

  	
  Offer
  to Terminate

  	
   

  	
  44

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.05.

  	
  Determination
  of Rent

  	
   

  	
  45

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 14: EVENTS OF DEFAULT AND REMEDIES

  	
   

  	
  45

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.01.

  	
  Covenants
  and Conditions

  	
   

  	
  45

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.02.

  	
  Defaults

  	
   

  	
  45

  



 


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  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.03.

  	
  Remedies

  	
   

  	
  46

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.04.

  	
  Automatic
  Termination; Damages

  	
   

  	
  47

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.05.

  	
  Cumulative
  Remedies

  	
   

  	
  47

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 15: SECURITY DEPOSIT

  	
   

  	
  48

  
	
  ARTICLE 16: PROTECTION OF LENDERS/GROUND LANDLORD

  	
   

  	
  50

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.01.

  	
  Subordination
  and Nondisturbance

  	
   

  	
  50

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.02.

  	
  [Illegible]

  	
   

  	
  51

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.03.

  	
  [Illegible]

  	
   

  	
  51

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.04.

  	
  Signing
  of Documents

  	
   

  	
  51

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.05.

  	
  Estoppel
  Certificates

  	
   

  	
  51

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.06.

  	
  Tenant’s
  Financial Condition

  	
   

  	
  52

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 17: MISCELLANEOUS PROVISIONS

  	
   

  	
  52

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  17.01.

  	
  Landlord’s
  Consent Fees

  	
   

  	
  52

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  17.02.

  	
  Notice
  of Landlord’s Default

  	
   

  	
  52

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  17.03.

  	
  Quiet
  Enjoyment

  	
   

  	
  52

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  17.04.

  	
  Severability

  	
   

  	
  53

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  17.05.

  	
  Interpretation

  	
   

  	
  53

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  17.06.

  	
  Incorporation
  of Prior Agreements; Modifications

  	
   

  	
  53

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  17.07.

  	
  Notices

  	
   

  	
  53

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  17.08.

  	
  Waivers

  	
   

  	
  53

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  17.09.

  	
  No
  Recordation

  	
   

  	
  53

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  17.10.

  	
  Bind
  and Inure; Choice of Law

  	
   

  	
  54

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  17.11.

  	
  Corporate
  Authority

  	
   

  	
  54

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  17.12.

  	
  Joint
  and Several Liability

  	
   

  	
  54

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  17.13.

  	
  Force
  Majeure

  	
   

  	
  54

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  17.14.

  	
  Execution
  of Lease

  	
   

  	
  55

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  17.15.

  	
  Survival

  	
   

  	
  55

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  17.16.

  	
  Limitation
  of Warranties

  	
   

  	
  55

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  17.17.

  	
  No
  Other Brokers

  	
   

  	
  55

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  17.18.

  	
  Landlord’s
  Consent

  	
   

  	
  55

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  17.19.

  	
  Construction on the
  Property or Adjacent Property

  	
   

  	
  55

  



 


iv

















 


MICROBIA, INC.


 


320 BENT STREET, CAMBRIDGE, MA


 


ARTICLE 1:   BASIC
TERMS


 


The following terms used in
this Lease shall have the meanings set forth below.


 


	
  1.01.

  	
  Date
  of Lease.

  	
   

  	
  January
  8, 2002, as amended May 2002, March 17, 2004, July 28, 2005 and January 12,
  2007

  
	
   

  	
   

  	
   

  	
   

  
	
  1.02.

  	
  Landlord.

  	
   

  	
  Rogers
  Street, LLC, a Delaware limited liability company

  
	
   

  	
   

  	
   

  	
   

  
	
  1.03.

  	
  Tenant.

  	
   

  	
  Microbia, Inc.,
  a Delaware corporation.

  
	
   

  	
   

  	
   

  	
   

  
	
  1.04.

  	
  Tenant
  Guarantor.

  	
   

  	
  None

  
	
   

  	
   

  	
   

  	
   

  
	
  1.05.

  	
  Address
  of Property.

  	
   

  	
  320
  Bent Street Cambridge, MA 02142

  
	
   

  	
   

  	
   

  	
   

  
	
  1.06.

  	
  Building
  and Property.

  	
   

  	
  The
  five (5) story building containing 184,224 rentable square feet (the “Building”)
  in the City of Cambridge, MA, located on a parcel of land described in Exhibit A
  attached hereto and known as 320 Bent Street (the Building and such parcel of
  land hereinafter being collectively referred to as the “Property”).

  
	
   

  	
   

  	
   

  	
   

  
	
  1.07.

  	
  Premises.

  	
   

  	
  39,101
  rentable square feet (as previously certified to Tenant by Landlord’s
  architect using the ANSI/BOMA Z65.1 — 1996 method of measurement), comprised
  of [illegible] as further described in Exhibits B through B-2
  (the “Premises”). Landlord and Tenant hereby acknowledge and agree
  that the rentable square footage set forth in Section 1.06 and this
  Section 1.07 are final and conclusive as between the parties, except as
  set forth in Section 2.01.

  
	
   

  	
   

  	
   

  	
   

  
	
  1.08.

  	
  Tenant’s
  Pro Rata Share.

  	
   

  	
  21.18%

  
	
   

  	
   

  	
   

  	
   

  
	
  1.09.

  	
  Term.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Initial
  Term:

  	
   

  	
  Eight
  (8) Lease Years from the Rent Commencement Date until the last day of
  the Eighth (8th) Lease Year. The Initial Term shall also include the period
  from the Lease Commencement Date to the Rent 

  



 

















 


	
   

  	
   

  	
   

  	
  Commencement
  Date.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Extension
  Terms:

  	
   

  	
  Three
  (3) additional terms of five (5) years each.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Lease
  Year:

  	
   

  	
  The
  first Lease Year begins on the Delivery Date and ends on the last day of the
  twelfth full calendar month after said Delivery Date. Each subsequent Lease
  Year ends twelve months after the preceding one.

  
	
   

  	
   

  	
   

  	
   

  
	
  1.10.

  	
  Commencement
  and Delivery Dates.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Lease
  Commencement Date:

  	
   

  	
  The
  date hereof.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Estimated
  Delivery Date:

  	
   

  	
  [Illegible]
  which date is subject to Force Majeure and Tenant Delays. Landlord shall
  endeavor to complete the Base Building Work and Finish Work pursuant to the
  schedule set forth in Exhibit L (“Landlord’s Construction
  Schedule”), but Landlord’s failure to meet Landlord’s Construction
  Schedule shall not create any liability, and Tenant shall have no remedies as
  a result except as otherwise set forth in Section 3.01.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Rent
  Commencement Date:

  	
   

  	
  [Illegible]
  Notwithstanding the foregoing, if, as, and when Tenant occupies any portion
  of the Premises for the conduct of its business prior to the Rent Commencement
  Date, then Tenant shall commence payments of Base Rent and Additional Rent on
  said portion (each a “Partial Rent Commencement Date”).

  
	
   

  	
   

  	
   

  	
   

  
	
  1.11.

  	
  Permitted
  Uses.

  	
   

  	
  (a) Technical
  office for research and development, laboratory and research facility and
  (b) subject to applicable requirements of the Cambridge Zoning
  Ordinance, limited manufacturing as an accessory use.

  
	
   

  	
   

  	
   

  	
   

  
	
  1.12.

  	
  Brokers.

  	
   

  	
  Greg
  Lucas of Insignia ESG.

  
	
   

  	
   

  	
   

  	
   

  
	
  1.13.

  	
  Management
  Company.

  	
   

  	
  To
  be designated by Landlord.

  
	
   

  	
   

  	
   

  	
   

  
	
  1.14.

  	
  Letter
  of Credit.

  	
   

  	
  $2,832,900

  
	
   

  	
   

  	
   

  	
   

  
	
  1.15.

  	
  Parking.

  	
   

  	
  As
  set forth in Section 8.03 of the Lease.

  



 


2

















 


	
  1.16.

  	
  Base
  Rent.

  	
   

  	
  $2,365,610.50
  ($60.50 per rentable square foot)

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Initial
  Term:

  	
   

  	
  From
  and after the Rent Commencement Date, [illegible]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Extension
  Term:

  	
   

  	
  Base
  Rent shall be the greater of (x) Market Rent, as determined pursuant to
  Section 3.03, or (y) the last effective Base Rent adjusted at the
  beginning of each Extension Term, if any, to reflect any increase in the
  Consumer Price Index for all Urban Wage Earners and Clerical Workers for
  Boston, Massachusetts published by the Bureau of Labor Statistics of the
  United States Department of Labor (base year 1982-84 = 100 (the “CPI) as more
  particularly set forth in Section 3.03(f). In no event shall the Base
  Rent for any Extension Term be less than the Base Rent last in effect for the
  previous Term as modified by the Adjustment, as defined in
  Section 3.03(f). Notwithstanding the foregoing, any such increase in CPI
  shall not exceed four percent (4%) per year compounded annually.

  
	
   

  	
   

  	
   

  	
   

  
	
  1.17.

  	
  Additional
  Rent.

  	
   

  	
  All
  amounts payable by Tenant under this Lease other than Base Rent, including
  without limitation:

   

  (i)                                     Tenant’s Pro
  Rata Share of Real Property Taxes (Article 5);

   

  (ii)                                  Utilities
  (Article 6);

   

  (iii)                               Insurance
  Premiums (Article 7); and

   

  (iv)                              Tenant’s Pro
  Rata Share of Operating Expenses (Article 8).

  
	
   

  	
   

  	
   

  	
   

  
	
  1.18.

  	
  Expenses
  Paid Directly by Tenant.

  	
   

  	
  All
  utilities (except as set forth in Article 6) and services to the
  Premises, including cleaning and HVAC. All personal taxes on Tenant’s
  personal property, etc.

  
	
   

  	
   

  	
   

  	
   

  
	
  1.19.

  	
  Address
  of Landlord for Notices.

  	
   

  	
  Lyme
  Properties, LLC

  101 Main
  Street, 18th Floor

  Cambridge, MA 02142

  Attn: David Clam and Robert L. Green

  



 


3

















 


	
   

  	
   

  	
   

  	
  With a copy to:

  

  Hill & Barlow

  One International Place

  Boston, MA 02116

  Attn: Greg D. Peterson, Esquire

  
	
   

  	
   

  	
   

  	
   

  
	
  1.20.

  	
  Address
  of Tenant for Notices.

  	
   

  	
  Prior to Occupancy:        One Kendall Square

  Building No. 1400,

  Suite 1418

  Cambridge, MA 02139

  Attention: Kevin Robinson

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  After Occupancy:                    At the
  Premises

  Attention: Kevin Robinson

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  With copy to:                                         Keith R.
  Barnett, Esquire

  Hale and Dorr LLP

  60 State Street

  Boston, MA 02109

  
	
   

  	
   

  	
   

  	
   

  
	
  1.21.

  	
  Finish
  Work.

  	
   

  	
  All
  to be constructed by Landlord as further set forth in Section 10.03(b).

  
	
   

  	
   

  	
   

  	
   

  
	
  1.22.

  	
  Finish
  Work Allowance.

  	
   

  	
  None.

  
	
   

  	
   

  	
   

  	
   

  
	
  1.23.

  	
  Base Building
  Work.

  	
   

  	
  As
  set forth in Section 10.03(a)

  



 


INDEX OF DEFINED TERMS


 


	
  Term

  	
   

  	
  Section

  
	
  AAA

  	
   

  	
  4.05

  
	
  Additional
  Rent

  	
   

  	
  1.17,
  4.02

  
	
  Adjustment

  	
   

  	
  1.6,
  3.03(f)

  
	
  Antenna

  	
   

  	
  11.01

  
	
  Antenna
  Installation Area

  	
   

  	
  11.01

  
	
  Arbitrator

  	
   

  	
  3.03(e)

  
	
  Audit
  Period

  	
   

  	
  4.05

  
	
  Base
  Building Work

  	
   

  	
  1.23,
  10.03(a)

  
	
  Base
  Price Index

  	
   

  	
  3.03(f)

  
	
  Base
  Rent

  	
   

  	
  1.16,
  4.01

  
	
  Broker

  	
   

  	
  1.12

  
	
  Building

  	
   

  	
  1.06

  



 


4

















 


	
  Term

  	
   

  	
  Section

  
	
  Building
  Signage

  	
   

  	
  9.05

  
	
  Business
  Day(s)

  	
   

  	
  3.03(d)

  
	
  CPI

  	
   

  	
  1.16

  
	
  Common
  Areas

  	
   

  	
  8.01

  
	
  Construction
  Documents

  	
   

  	
  10.05(b)

  
	
  Control

  	
   

  	
  13.01

  
	
  Delivery
  Date

  	
   

  	
  3.01

  
	
  Environmental
  Incidents

  	
   

  	
  9.04

  
	
  Environmental
  Law(s)

  	
   

  	
  9.04

  
	
  Environmental
  Substances

  	
   

  	
  9.04

  
	
  Escrow
  Agent

  	
   

  	
  Article 15

  
	
  Escrow
  Agreement

  	
   

  	
  Article 15

  
	
  Estimated
  Delivery Date

  	
   

  	
  1.10

  
	
  Event
  of Default

  	
   

  	
  14.02

  
	
  Existing
  NDA

  	
   

  	
  16.03

  
	
  Extension
  Term(s)

  	
   

  	
  1.09,
  3.03(c)

  
	
  Final
  Punch List

  	
   

  	
  10.03(b)(iv)

  
	
  Finish
  Work

  	
   

  	
  1.21,
  10.03(b)(i)

  
	
  Finish
  Work Allowance

  	
   

  	
  1.22

  
	
  Finish
  Work Change Order

  	
   

  	
  10.03(b)(ii)

  
	
  Finish
  Work Construction Documents

  	
   

  	
  10.03(b)(i)

  
	
  First
  Extension Term

  	
   

  	
  3.03(a)

  
	
  Force
  Majeure

  	
   

  	
  17.13

  
	
  Ground
  Landlord

  	
   

  	
  16.03

  
	
  Ground
  Lease

  	
   

  	
  16.03

  
	
  Guarantor

  	
   

  	
  16.03

  
	
  Guaranty

  	
   

  	
  16.03

  
	
  HVAC

  	
   

  	
  8.04

  
	
  Indemnitees

  	
   

  	
  9.02

  
	
  Initial
  Common Areas

  	
   

  	
  8.01

  
	
  Initial
  Term

  	
   

  	
  1.09

  
	
  Interim
  Period

  	
   

  	
  2.02

  
	
  Landlord

  	
   

  	
  1.02

  
	
  Landlord’s
  Authorized Representative

  	
   

  	
  10.03(b)(v)

  
	
  Landlord’s
  Construction Schedule

  	
   

  	
  1.10

  
	
  Lease
  Commencement Date

  	
   

  	
  1.10,
  3.01

  
	
  Lease
  Year

  	
   

  	
  1.09

  
	
  Legal
  Requirement

  	
   

  	
  9.03

  
	
  Letter
  of Credit

  	
   

  	
  1.14,
  Article 15

  
	
  Market
  Rent

  	
   

  	
  3.03(d)

  
	
  Material
  Service Interruption

  	
   

  	
  6.01

  
	
  Minor
  Work

  	
   

  	
  10.05(c)

  
	
  Offer
  Notice

  	
   

  	
  2.02

  
	
  Offered
  Space

  	
   

  	
  2.02

  
	
  Operating
  Costs

  	
   

  	
  4.02(a)

  



 


5

















 


	
  Term

  	
   

  	
  Section

  
	
  Operating
  Expenses

  	
   

  	
  8.04

  
	
  Outside
  Delivery Date

  	
   

  	
  3.01

  
	
  PTDM
  Agreement

  	
   

  	
  8.03

  
	
  Partial
  Rent Commencement Date

  	
   

  	
  1.10

  
	
  Permitted
  Transfer

  	
   

  	
  13.01

  
	
  Permitted
  Uses

  	
   

  	
  1.11,
  9.01

  
	
  Preferred
  NDA

  	
   

  	
  16.03

  
	
  Premises

  	
   

  	
  1.07,
  2.01

  
	
  Proceeds

  	
   

  	
  10.02(b)

  
	
  Profits

  	
   

  	
  13.02

  
	
  Project

  	
   

  	
  17.19

  
	
  Property

  	
   

  	
  1.06

  
	
  RFO
  Space

  	
   

  	
  2.02

  
	
  Real
  Property Tax

  	
   

  	
  5.02

  
	
  Rent

  	
   

  	
  4.02(a)

  
	
  Rent
  Commencement Date

  	
   

  	
  1.10

  
	
  Right
  of First Offer

  	
   

  	
  2.02

  
	
  Rooftop
  Equipment

  	
   

  	
  11.01

  
	
  Rooftop
  Installation Areas

  	
   

  	
  11.01

  
	
  Rules and
  Regulations

  	
   

  	
  8.02

  
	
  SNDA

  	
   

  	
  7.01

  
	
  Second
  Extension Term

  	
   

  	
  3.03(b)

  
	
  Service Interruption

  	
   

  	
  6.01

  
	
  Service Interruption Notice

  	
   

  	
  6.01

  
	
  Substantially
  Completed

  	
   

  	
  10.03(b)(vii)

  
	
  Substitute
  Taxes

  	
   

  	
  5.02

  
	
  Systems
  or Structure Work

  	
   

  	
  10.05(b)

  
	
  Taking

  	
   

  	
  12.01

  
	
  Target
  Delivery Date

  	
   

  	
  2.02

  
	
  Tenant

  	
   

  	
  1.03

  
	
  Tenant
  Contractor

  	
   

  	
  10.05(c)

  
	
  Tenant
  Delay

  	
   

  	
  10.03(b)(vi)

  
	
  Tenant
  Guarantor

  	
   

  	
  1.04

  
	
  Tenant
  Parties

  	
   

  	
  17.19

  
	
  Tenant
  Work

  	
   

  	
  10.05(a)

  
	
  Tenant’s
  Architect

  	
   

  	
  10.05(b)

  
	
  Tenant’s
  Audit Notice

  	
   

  	
  4.05

  
	
  Tenant’s
  Authorized Representative

  	
   

  	
  10.03(b)(v)

  
	
  Tenant’s
  Equipment

  	
   

  	
  11.01

  
	
  Tenant’s
  Pro Rata Share

  	
   

  	
  1.08

  
	
  Term

  	
   

  	
  1.09

  
	
  Third
  Arbitrator

  	
   

  	
  3.03(e)

  
	
  Third
  Elevator

  	
   

  	
  3.01

  
	
  Third
  Extension Term

  	
   

  	
  3.03(c)

  
	
  Title
  Documents

  	
   

  	
  2.01

  



 


6

















 


	
  Term

  	
   

  	
  Section

  
	
  Total
  Operating Costs

  	
   

  	
  4.02(a)

  
	
  Transfer

  	
   

  	
  13.01

  
	
  Transferee

  	
   

  	
  13.01

  
	
  Utility
  Service(s)

  	
   

  	
  6.01

  
	
  Utility
  Service Provider(s)

  	
   

  	
  6.01

  
	
  Utility
  Switching Points

  	
   

  	
  6.01

  



 


ARTICLE 2:   PREMISES
AND APPURTENANT RIGHTS


 


2.01.                                        Lease
of Premises; Appurtenant Rights.  Landlord leases
and demises the Premises to Tenant, and Tenant hereby leases the Premises from
Landlord, for the Term, subject to and with the benefit of the terms,
covenants, conditions and provisions of this Lease.  Tenant shall have, as appurtenant to the
Premises, the right to use in common with others, if any, entitled thereto the
Common Areas and the Building service fixtures and equipment serving the Premises.  Tenant shall also have the exclusive use of
the portion of the basement shown on Exhibits B-1 and B-2, which areas
shall be included in the term “Premises” and subject to all of the terms
and conditions of this Lease.  Use of the
areas shown on Exhibits B-1 and B-2 shall be limited to the purposes
described on said exhibit.  Subject to
Landlord’s reasonable security procedures, which shall uniformly apply to all
tenants, Tenant shall have access to the Premises twenty-four (24) hours a day,
seven (7) days a week.


 


Tenant shall have the
appurtenant right to access 301 Binney Street via the underground tunnel
between the Building and 301 Binney Street, subject to the Rules and
Regulations and Landlord’s reasonable security measures (which appurtenant
right may be provided by use of a cross-easement if 301 Binney Street is ever
held in separate ownership from the Building).


 


Landlord reserves the right (i) to
install, use, maintain, repair, replace and relocate pipes, meters, other
equipment and fixtures in the Premises (subject to Section 9.06) or elsewhere
on the Property; (ii) to make additions to the Building and alter or
relocate entranceways.  Common Areas or
other facilities (including driveways, walkways and parking areas); (iii) to
sell or grant any portion of or interest in the Property; and (iv) to
grant easements and other rights; provided, however, that Landlord’s activities
pursuant to clauses (i), (ii) and (iv), above, do not have a direct,
material adverse effect on the Premises, on Tenant’s use thereof, or on Tenant’s
access rights.  The Building or Property
may be submitted to a condominium to permit separate ownership and financing of
the Building or Property, provided that Tenant’s rights and obligations under
this Lease shall not be affected in any material respect.


 


As of the Date of Lease,
Landlord has provided Tenant with a copy of its Title Insurance Policy No. O99931061334
dated February 1, 2001, date downs/endorsements through October 11,
2001, and copies of all exception documents related thereto (the “Title Documents”).  Landlord covenants to Tenant that, except as
set forth in the Title Documents, there are no recorded matters affecting the
Premises or Property.


 


7














 


2.02.                                        Right
of First Offer.  From and after
the later of (a) the initial lease-up of the Building (i.e., after the
Building achieves 100% occupancy) or (b) one (1) year following the
Lease Commencement Date (the “Interim Period”), Landlord agrees not to enter
into any lease or leases for any available space in the Building (in each case,
an “RFO Space”) without first giving Tenant an opportunity to lease such
space (“Right of First Offer”), provided, however, that
Landlord shall not have to afford Tenant such opportunity, and the provisions
of this Section 2.02 shall not apply, if (i) Landlord is leasing such
space to tenants, or to any affiliates thereof, under extension or expansion
rights granted under leases executed by Landlord during the Interim Period, (ii) an
Event of Default exists at the time Tenant elects to exercise this Right of
First Offer or at the time the RFO Space would be added to the Premises or (iii) any
Transfer or Transfers requiring Landlord’s consent under Article 13 with
respect to an aggregate of more than 50% or more of the Premises has occurred
at or prior to either such time.


 


If Landlord intends to enter
into a lease for any RFO Space and is obligated to first give Tenant an
opportunity to lease such space hereunder, then Landlord will deliver to Tenant
a notice (the “Offer Notice”) that (i) specifies the space that
will be available (the “Offered Space”), the date on which Landlord
anticipates that the space will be available (the “Target Delivery Date”),
and the business terms on which Landlord is prepared to lease the Offered Space
to the extent such business terms vary from the terms of the Lease, and (ii) offers
to lease all of the Offered Space to Tenant on the same business terms.  If Landlord is prepared to lease the Offered
Space on more than one set of business terms (e.g., for different terms of
years at different rent rates), then Landlord may specify alternative business
terms in the Offer Notice.


 


If Tenant delivers to
Landlord, within fourteen (14) days following receipt of the Offer Notice, an
acceptance of such offer (which shall include an acceptance of one of the
proposed sets of business terms if the Offer Notice included alternative sets
of business terms), then the same shall constitute an agreement to lease all of
the Offered Space on the business terms set forth in the Offer Notice, and
within 15 days after acceptance of the offer the parties shall enter into a
lease amendment providing for the incorporation of the Offered Space into the
Premises on such business terms.  If
Tenant does not accept such offer, then the Offered Space may be leased by
Landlord to a third party other than Tenant on terms no more favorable to such
third party than those in the Offer Notice, except that Landlord shall have the
right to vary the rent in said third-party lease by up to five (5%) percent of
that specified in the Offer Notice and said action shall not be deemed to be
more favorable to the third party.  In
the event the rent decreases by more than five (5%) percent or the Landlord
otherwise changes the business terms from those set forth in the Offer Notice
in a manner more favorable to a third party, Landlord shall re-offer the
Offered Space to Tenant in the same manner, except that Tenant must respond to
Landlord within seven (7) days of the date Landlord re-offers the Offered
Space to Tenant.


 


Landlord shall endeavor to
deliver any Offered Space leased by Tenant pursuant to this Section 2.02
on or before the Target Delivery Date specified in the Offer Notice.  However, Landlord’s failure to deliver, or
any delay in delivering, the Offered Space for any reason beyond Landlord’s
reasonable control (including, without limitation, continued occupancy by a
prior occupant) shall not be a default of Landlord or give rise to any liability
of Landlord under the Lease, and shall not affect the validity of the Lease or
Tenant’s obligation to accept and lease the Offered Space when delivered
(except as Landlord and Tenant may mutually agree at the time Landlord delivers
the Offer Notice to Tenant). 
Notwithstanding the foregoing, Landlord shall 


 


8

















 


use diligent efforts to
deliver any Offered Space leased by Tenant, and in the event Landlord is unable
to deliver the Offered Space to Tenant on or before the date that is six (6) months
after the Target Date, Tenant shall not be obligated to lease the Offered Space
provided that within thirty (30) days after the end of said six-month period,
Tenant notifies Landlord in writing of its desire not to lease the Offered
Space.


 


This Section 2.02 shall
not be construed to grant to Tenant any rights or interest in any RFO Space,
and any claims by Tenant alleging a failure of Landlord to comply with this Section 2.02
shall be limited to claims for monetary damages and Tenant shall not assert any
rights in any space on the RFO Space nor file any lis pendens
or similar notice with respect thereto.


 


ARTICLE 3:   LEASE
TERM


 


3.01.                                        Lease
Term; Delay in Commencement.  The Initial
Term of this Lease is defined in Section 1.09.  Landlord shall use reasonable efforts to
deliver the Premises to Tenant with the Finish Work and Base Building Work
Substantially Complete and free and clear of any other occupant on or before
the Estimated Delivery Date.  The “Delivery
Date” shall mean the date Landlord delivers the Premises to Tenant in such
condition, other than the construction of the third elevator service described
in the Base Building Work (the “Third Elevator”).  Landlord’s failure to deliver the Premises to
Tenant on or before the Estimated Delivery Date, for any reason, shall not give
rise to any liability of Landlord hereunder except as expressly set forth in
this Section 3.01, shall not constitute a Landlord’s default, shall not
affect the validity of this Lease, and shall have no effect on the beginning or
end of the Term as otherwise determined hereunder or on Tenant’s obligations
associated therewith.  Notwithstanding
the foregoing, [illegible] July 15, 2002 [illegible].


 


In the event that Landlord (i) has
not applied for a Building Permit for the Finish Work and Base Work on or
before the date that is five (5) Business Days after the execution of the
Lease by both parties, (ii) has not received a Building Permit on or
before the date that is thirty (30) days after Landlord applies for a Building
Permit for the Finish Work and Base Building Work, subject to extension for
Tenant Delays and Force Majeure, or (iii) has received the Building Permit
but the work thereunder is suspended prior to its Substantial Completion due to
an injunction granted by a court having jurisdiction over the Property, which
injunction is not dismissed within thirty (30) days, subject to extension for
Tenant Delays, then [illegible] provided, however, that if Landlord satisfies
such condition prior to the conclusion of such 30 day period, then Tenant’s
election to terminate this Lease shall be null and void and of no further force
or effect.  [illegible] provided,
however, that if Landlord satisfies such condition prior to the conclusion of
such 15 day period, then Tenant’s election to terminate this Lease pursuant to
this sentence shall be null and void and of no further force and effect.


 


3.02.                                        Hold
Over.  Tenant shall vacate the
Premises when this Lease expires or terminates (if sooner).  If Tenant holds over, it shall continue to
pay Rent, but Base Rent shall be 200% of the greater of (i) the fair
market rent or (ii) the then current Base Rent.  Tenant’s hold over shall not limit any of
Landlord’s rights or Tenant’s obligations, including Landlord’s right to
repossess the Premises and remove Tenant and Tenant’s property pursuant to this
Lease after this Lease terminates or expires. 
If Tenant holds over, it shall be as a licensee under a revocable
license with no right of possession in the Premises.  Tenant shall reimburse Landlord for and
indemnify 


 


9

















 


Landlord against all damages
(including consequential damages), liabilities and costs, including reasonable
attorneys’ fees, which Landlord incurs on account of Tenant’s hold over.  Notwithstanding the foregoing, Tenant’s
liability for damages (excluding the holdover Base Rent set forth above) during
the first ninety (90) days after the expiration or earlier termination of the
Lease shall be limited to Landlord’s actual lost rents and out-of-pocket costs
(including, without limitation, brokerage commissions, reasonable attorneys’
fees, design costs, advertising costs and any penalties as liquidated damages
that Landlord may incur) due to such holdover’s effect on a bona-fide third
party’s agreement to lease or otherwise occupy the Premises.


 


3.03.                                        Right
to Extend.


 


3.03(a)  First
Extension Term.  This Lease of all of
the Premises may be extended for an additional five-year period (the “First Extension
Term”) by unconditional written notice from Tenant to Landlord at least
twelve (12) (but not more than eighteen (18)) months before the end of the
Initial Term, time being of the essence. 
If Tenant does not timely exercise this option, or if on the date of
such notice or at the beginning of the First Extension Term an Event of Default
exists, Tenant’s right to extend shall irrevocably lapse, Tenant shall have no
further right to extend, and this Lease shall expire at the end of the Initial
Term.


 


3.03(b)  Second
Extension Term.  The Lease of all the
Premises may be extended for a second five-year period (the “Second
Extension Term”) by unconditional written notice from Tenant to Landlord at
least twelve (12) (but not more than eighteen 18)) months before the end of the
First Extension Term (if any).  If Tenant
does not timely exercise this second extension option, or if on the date of
such notice or at the becoming of the Second Term an Event of Default exists,
Tenant’s right to extend shall irrevocably lapse, Tenant shall have no further
right to extend, and this Lease shall expire at the end of the First Extension
Term.


 


3.03(c)  Third
Extension Term.  The Lease of all the
Premises may be extended for another five-year period (the “Third Extension
Term”) by unconditional written notice from Tenant to Landlord at least
twelve (12) (but not more than eighteen (18)) months before the end of the
Second Extension Term (if any).  If
Tenant does not timely exercise this third extension option, or if on the date
of such notice or at the beginning of the Third Extension Term an Event of Default
exists, Tenant’s right to extend shall irrevocably lapse, Tenant shall have no
further right to extend, and this Lease shall expire at the end of the Second
Extension Term.


 


All references to the Term
shall mean the Initial Term as it may be extended by the First Extension Term,
the Second Extension Term and the Third Extension Term, if any (each, an “Extension
Term”).  Each Extension Term shall be
on all the same terms and conditions applied to the Initial Term except that
the Base Rent for each Extension Term shall be as set forth below.


 


3.03(d)  Market Rent.  If Tenant gives Landlord timely notice of its
intention to extend the then-current Term of this Lease, as it may have been
previously extended then within sixty (60) days thereafter, Landlord shall give
Tenant written notice of the then applicable market rent for Tenant’s space,
based on similar space in the Building and rent for similar space in similar
buildings in the same geographic area, taking into account the absence of a
tenant improvement allowance and brokerage commissions to file extent
applicable, (the “Market Rent”). 
Rent for 


 


10

















 


each year of the next
Extension Term shall be established as the higher of (x) one-hundred percent
(100%) of the Market Rent or (y) the then-effective Base Rent adjusted at
the commencement of the applicable Extension Term to reflect any increase in
the CPI.  In no event shall Market Rent
be lower than the Base Rent most recently paid hereunder as modified by the
Adjustment, as defined below.  Within ten
(10) Business Days (as defined below) after Tenant receives such notice,
Tenant shall notify Landlord of its agreement with or objection to Landlord’s
determination of the Market Rent, whereupon the Market Rent shall be determined
by arbitration conducted in the manner set forth below.  If Tenant does not notify Landlord within
such ten (10) day period of Tenant’s agreement with or objection to
Landlord’s determination of the Market Rent, then the Market Rent for the
applicable Extension Period shall be deemed to be Landlord’s determination of
the Market Rent as set forth in this notice from Landlord described in this subsection.  “Business Days” shall mean any day
other than Saturday, Sunday, and weekdays when the state courts of The
Commonwealth of Massachusetts are closed.


 


3.03(e)  Arbitration
of Market Rent.  If Tenant notifies
Landlord of Tenant’s objection to Landlord’s determination of Market Rent under
the preceding subsection, such notice shall also set forth a request for
arbitration and Tenant’s appointment of an MAI appraiser having at least ten (10) years’
experience in the commercial leasing market in the City of Cambridge, Massachusetts
(an “Arbitrator”).  Within five (5) days
thereafter, Landlord shall by notice to Tenant appoint a second
Arbitrator.  Each Arbitrator shall be
advised to determine the Market Rent for the applicable Extension Term within
thirty (30) days after Landlord’s appointment of the second Arbitrator.  On or before the expiration of such
thirty-(30)-day period, the two Arbitrators shall confer to compare their
respective determinations of the Market Rent. 
If the difference between the amounts so determined by the two
Arbitrators is less than or equal to ten percent (10%) of the lower of said
amounts then the final determination of the Market Rent shall be equal to the
average of said amounts.  If such
difference between said amounts is greater than ten percent (10%), then the two
arbitrators shall have ten (10) days thereafter to appoint a third Arbitrator
(the “Third Arbitrator”), who shall be instructed to determine the
Market Rent for the Applicable Extension Term within ten (10) days after its
appointment by selecting one of the amounts determined by the other two
Arbitrators.  Each party shall bear the
cost of the Arbitrator selected by such party. 
The cost for the Third Arbitrator, if any, shall be shared equally by
Landlord and Tenant.


 


3.03(f)  CPI
Adjustment.  If, at the commencement
of the applicable Extension Term, there is a change in the CPI (or any
comparable successor or substitute index reasonably designated by the Landlord,
appropriately adjusted, and approved by Tenant, such approval not to be
unreasonably withheld,) reflecting an increase in the cost of living over and
above the cost of living as reflected by the CPI for the month in which the
Lease Commencement Date occurs (or, with respect to the Second or Third
Extension Tram, the CPI for the month in which the prior Extension Term
commenced) (hereinafter called the “Base Price Index”), the “Adjustment”
of the Base Rent shall be calculated as follows for the purposes set forth in Section 3.03(d),
clause (y): the Base Rent shall be multiplied by a fraction, the numerator of
which shall be the CPI for the month in which the applicable Extension Term
commences, and the denominator of which (for each such fraction) shall be the
Base Price Index.  In the event that
Landlord determines, and Tenant agrees, that the CPI ceases to use the 1982-84
average of 100 as the basis of calculation, or if a substantial change is made
in the terms or number of items contained in the CPI, then the CPI shall be
adjusted to the figure that the parties agree in good faith would have 


 


11

















 


been arrived at had the
manner of computing the CPI in effect at the date of this Lease not been
changed.  In the event that within one (1) year
following the date that the CPI figure for any month used in calculating the
Adjustment shall have been published, the federal government shall revise such
figure, then: (x) such revised CPI figure shall thereafter be deemed to be
the correct CPI figure for all purposes (unless the federal government shall
yet again revise such figure, in which case the most recently revised CPI
figure shall be deemed to be correct); and (y) any retroactive adjustment
or recomputation resulting from such revised CPI figure shall be limited to
encompass only the year immediately preceding the date upon which the revision
of such CPI figure shall have first been published.  Notwithstanding the foregoing, any such
increase in CPI shall not exceed four percent (4%) per year compounded
annually.


 


ARTICLE 4:   RENT


 


4.01.                                        Base
Rent.  On the Rent Commencement
Date (or, if applicable, on the Partial Rent Commencement Date with respect to
the relevant portion of the Premises) and thereafter on the first day of each
month during the Term.  Tenant shall pay
Landlord the Base Rent (or, if applicable, the relevant portion hereof if only
a Partial Rent Commencement Date has occurred) for that month in advance and
the monthly installment of Tenant’s Pro Rata Share of Total Operating Costs
required by Section 4.02, without offset, deduction or prior demand.  Rent shall be payable at Landlord’s address
or otherwise as Landlord may designate in writing from time to time.


 


4.02.                                        Additional
Rent.


 


4.02(a)  General.  “Additional Rent” means all amounts
payable by Tenant under this Lease other than Base Rent.  “Rent” means Base Rent and Additional Rent
Landlord shall estimate in advance (i) all Real Property Taxes under Article 5,
(ii) all utility costs (unless separately metered or separately contracted
for by Tenant) under Article 6, (iii) all insurance premiums under Article 7
and all premiums paid by Landlord for insurance on the Property, and (iv) all
Operating Expenses under Section 8.04 (individually, “Operating Costs”
and collectively, the “Total Operating Costs”) and, commencing on the
Rent Commencement Date (or, if applicable, on the Partial Rent Commencement
Date with respect to the relevant portion of the Premises) Tenant shall pay
one-twelfth of Tenant’s Pro Rata Share of such estimated Total Operating Costs
monthly in advance together with Base Rent. 
Landlord may adjust its estimates of Total Operating Costs at any time
based upon its experience and reasonable anticipation of costs.  Such adjustments shall be effective as of the
next Rent payment date at least fifteen (15) days after notice to Tenant.  Within ninety (90) days after the end of each
fiscal year of the Property during the Term, Landlord shall endeavor to give to
Tenant (and in any event shall give to Tenant within one hundred eighty (180)
days after the end of each fiscal year) a reasonably detailed statement of the
Total Operating Costs (other than Real Property Taxes) paid or incurred by
Landlord during the preceding fiscal year and Tenant’s Pro Rata Share of such expenses.  Within the next thirty (30) days, Tenant
shall pay Landlord any underpayment, or Landlord shall credit Tenant with any
overpayment, of Tenant’s Pro Rata Share of such Total Operating Costs.  If the Term expires or the Lease is
terminated as of a date other than the last day of a fiscal year, Tenant’s
payment of Additional Rent pursuant to this Section for such partial
fiscal year shall be based on Landlord’s best estimate of the items otherwise
includable in Total Operating Costs and shall be made on or before the later of
(a) ten (10) days after Landlord delivers such estimate to 


 


12

















 


Tenant or (b) the last
day of the Term, with an appropriate payment or refund to be made upon Tenant’s
receipt of Landlord’s statement of Total Operating Costs for such fiscal
year.  In any case, with respect to the
last fiscal year to occur during the Term or the earlier termination of the
Term, Landlord’s obligation to provide Tenant with a statement and Landlord’s
or Tenant’s obligation to provide payment of any over- or underpayments with respect
to Tenant’s Pro Rata Share of such Total Operating Costs shall survive the
termination of this Lease.


 


This Lease requires Tenant
to pay directly to suppliers, vendors, carriers, contractors, etc., certain insurance
premiums, utility costs, personal property taxes, maintenance and repair costs
and other expenses.  If Landlord pays any
of these amounts in accordance with this Lease, Tenant shall reimburse such
costs in full upon demand with the next monthly Rent payment.  Unless this Lease provides otherwise, Tenant
shall pay all Additional Rent then due on or before the date for the next
monthly Rent payment, but, in the case of Additional Rent other than Tenant’s
Pro Rata Share of Total Operating Costs, in no event shall such payment be required
earlier than fifteen (15) days after demand. 
In no event shall Landlord’s failure to demand payment of Additional
Rent be denied a waiver of Landlord’s right to such payment.


 


4.02(b)  Allocation
of Certain Operating Costs.  If at
any time during the Term, Landlord provides services only with respect to
particular portions of the Building or incurs other Operating Costs allocable
to particular portions of the Building, then such Operating Costs shall be
charged entirely to those tenants, including Tenant, if applicable, of such
portions, notwithstanding the provisions hereof referring to Tenant’s Pro Rata
Share, if, during any period for which Landlord’s Operating Costs are being
computed, less than all of the Building is occupied by tenants, or if Landlord
is not supplying all tenants with the services being supplied hereunder.  Operating Costs shall be reasonably estimated
and extrapolated by Landlord to determine the Operating Costs that would have
been incurred if the Building were fully occupied for such year and such
services were being supplied to all tenants, and such estimated and extrapolated
amount shall be deemed to be the Operating Costs for such period.


 


4.03.                                        Late
Charge.  Tenant acknowledges that if
it pays Rent late, Landlord shall incur unanticipated costs, which shall be
extremely difficult to ascertain exactly. 
Such costs include processing and accounting charges, and late charges
which may be imposed on Landlord by any mortgage on the Property.  Accordingly, if Landlord does not receive any
Rent payment within five (5) days following its due date, Tenant shall pay
Landlord a late charge equal to five (5%) percent of the overdue amount.  The parties agree that this late charge
represents a fair and reasonable estimate of the costs Landlord shall incur by
reason of Tenant’s payment default.  Payment
of the late charge shall not cure Tenant’s payment default or prevent Landlord
from exercising other rights and remedies. 
No late charges under this Section 4.03 shall accrue until Landlord
provides notice of such late payment to Tenant and five (5) days elapse
from such notice without Tenant having made such payment; provided, however,
that Landlord shall not be required to give such notice more than one time in
any 12-month period.


 


4.04.                                        Interest.  Any late Rent (other than
late charges pursuant to Section 4.03) shall bear interest from the date
that is five (5) days after the date due until paid at the rate of 15% per
annum except to the extent such interest would cause the total interest to be
in excess of that legally permitted; provided, however, that (i) interest
shall accrue from the date due if Tenant makes a late payment of Rent more than
one time in any 12-month period and (ii) no interest 


 


13

















 


shall accrue on Rent other
than Base Rent and Tenant’s Pro Rata Share of Operating Costs until Tenant has
received notice of such late payment. 
Payment of interest shall not cure Tenant’s payment default or prevent
Landlord from exercising other rights and remedies.


 


4.05.                                        Audit.  Landlord shall keep books
and records regarding Total Operating Costs. 
All records shall be retained for at least three (3) years.  At the request of Tenant (“Tenant’s Audit
Notice”) given within one hundred eighty (180) days after Landlord delivers
Landlord’s statement of Total Operating Costs, Tenant (at Tenant’s expense)
shall have the right to examine Landlord’s books and records applicable to
Total Operating Costs for such fiscal year. 
Such right to examine the records shall be exercisable: (i) upon
reasonable advance notice to Landlord and at reasonable times during Landlord’s
business hours and (ii) only during the 120-day period (the “Audit
Period”) following Tenant’s Audit Notice. 
In the event an audit of Landlord’s Total Operating Costs for such year,
conducted by an independent certified public accountant retained by Tenant or
an auditing firm approved by Landlord for such purpose, indicates that certain
items were improperly included in Landlord’s Total Operating Costs.  Landlord disputes the results of said audit,
then Tenant may request that the amount of Additional Rent for Total Operating
Costs for the year in question be determined by an audit conducted by a
certified public accountant reasonably selected by both parties, provided that
if the parties are unable so to agree within ten (10) days after receipt
of Tenant’s notice, then within twenty (20) days after Tenant’s notice is
given, Tenant may submit the dispute for determination by an arbitration
conducted by the Boston Office of the American Arbitration Association (“AAA”)
in accordance with the AAA’s commercial real estate arbitration rules.  The arbitrator shall be selected by the AAA
and shall be a certified public accountant with at least ten (10) years of
experience in auditing commercial office buildings in the metropolitan Boston
area.  If the Additional Rent due as
finally determined for such fiscal year is less than the Additional Rent paid
by Tenant, Landlord Shall either, at Tenant’s option, refund to Tenant the
difference in one lump sum within 30 days after Tenant’s request or credit same
against Rent next due from Tenant. 
Tenant’s auditing firm shall be subject to the prior approval of
Landlord, which approval may be granted or denied in Landlord’s reasonable
discretion, and shall not be compensated on a contingent fee basis.  Any of the following accounting firms shall
be deemed acceptable to Landlord if not compensated on a contingent fee
basis:  Arthur Andersen, LLP; Ernst &
Young, LLP; PricewaterhouseCoopers, LLP; KPMG Peat Marwick, LLP; and Deloitte &
Touche, LLP.  Notwithstanding the
foregoing, Tenant’s request to audit Landlord’s books and records shall not
extend the time within which Tenant is obligated to pay the amounts shown on
Landlord’s statement of Total Operating Costs, and Tenant may not make the
request to audit Landlord’s books and records at any time Tenant is in default
of such payments or otherwise in default beyond applicable notice and cure
periods under the Lease.  In the event
the audit determines that Tenant has been overcharged by 5% or more of the
Additional Rent due with respect to Total Operating Costs, Landlord shall pay
for the cost of said audit and/or the arbitration.  In all other cases, Tenant shall pay for the
cost of said audit and/or the arbitration.


 


As a condition precedent to
performing any such examination of Landlord’s books and records, Tenant and its
examiners shall be required to execute and deliver to Landlord an agreement in
form reasonably acceptable to Landlord agreeing to keep confidential any
information that they discover about Landlord or the Building or the Property
in connection with such examination. 
Without limiting the foregoing, such examiners shall also be required to
agree that they will not represent any other tenant in the Building or the
Property in connection with 


 


14

















 


examinations of Landlord’s
books and records for the Building unless said tenant(s) have retained
said examiners prior to the date of the first examination of Landlord’s books
and records conducted by Tenant pursuant to this Section 4.05.  Notwithstanding any prior approval of any examiners
by Landlord, Landlord shall have the right to rescind such approval at any time
if in Landlord’s reasonable judgment the examiners have breached any
confidentiality undertaking to Landlord or cannot provide reasonably acceptable
assurances and procedures to maintain confidentiality.


 


ARTICLE 5:   PROPERTY TAXES


 


5.01.                                        Real
Property Taxes.  Tenant
covenants and agrees to pay to Landlord as Additional Rent Tenant’s Pro Rata
Share of the Real Property Taxes (hereafter defined) for the Property for each
fiscal tax period, or ratable portion thereof, included in the Lease Term;
provided, however, that Tenant shall have no obligation with respect to Real
Property Taxes prior to the Rent Commencement Date except to the extent a
Partial Rent Commencement Date occurs and then only with respect to the applicable
portion of the Premises.  If Landlord
receives a refund of any such Real Property Taxes, then, after deducting
Landlord’s out-of-pocket costs and expenses incurred in obtaining the refund,
Landlord shall pay Tenant Tenant’s Pro Rata Share of the net refund.  Upon Tenant’s request, Landlord shall furnish
Tenant with copies of the applicable real estate tax bill.


 


Commencing on the Rent
Commencement Date or Partial Rent Commencement Date(s), if applicable, Tenant
shall make estimated payments on account of Real Property Taxes in monthly
installments on the first day of each month, in amounts reasonably estimated
from time to time by Landlord pursuant to Section 4.02(a) to provide
for the full payment of Tenant’s obligation with respect to Real Property Taxes
on the date such Taxes are due, and with a final payment adjustment between the
parties within 30 days after Landlord provides Tenant a statement of Real
Property Taxes for Landlord’s most recent tax year, which statement Landlord
will endeavor to provide no later than ninety (90) days after the end of the
fiscal tax year (and in any event shall provide within thirty (30) days after
Tenant’s request therefor if Landlord has received such bill from the City of
Cambridge).  This final payment
adjustment provision shall survive the expiration or, earlier termination of
this Lease.


 


5.02.                                        Definition
of “Real Property Tax”.  “Real
Property Tax” means taxes, assessments (special, betterment, or otherwise),
levies, fees, rent taxes, excises, impositions and charges, including water and
sewer rents and charges, and all other government levies and charges, general
and special, ordinary and extraordinary, foreseen and unforeseen, which are
imposed or levied upon or assessed against the Property or any Rent or other
sums payable by any tenants or occupants of the Property.  Real Property Tax includes Landlord’s
reasonable costs and expenses of contesting any Real Property Tax.  At such time, if any, as the Premises
comprises at least fifty percent (50%) of rentable area located on the tax lot
that includes the Property, Landlord shall, upon the written request of Tenant,
commence a proceeding for abatement of Real Property Taxes, provided Landlord
shall thereafter have the right to settle such proceeding for the benefit of
tenants in its reasonable discretion. 
The following shall be excluded from Real Property Taxes and shall be
paid solely by Landlord:  inheritance,
estate, succession, transfer, gift, franchise, or capital stock tax, or any
income taxes arising out of or related to ownership and operation of
income-producing real estate, or any excise taxes imposed upon Landlord based 


 


15

















 


gross or net rentals or
other income received by it, and assessments, charges, taxes, rents, fees,
rates, levies, excises, license fees, permit fees, inspection fees or other
authorization fees or charges to the extent allocable to or caused by the
development or installation of on- or off-site improvements or utilities
(including without limitation street and intersection improvements, roads,
rights of way, lighting and signalization) necessary for the initial
development or construction of the Building (other than increases in Real
Property Taxes due solely to changes in the assessed valuation of the Property
as a result of such development or construction).  If the Property is not a separate tax parcel,
then real estate taxes shall be allocated between the Property and the balance
of the tax parcel in a manner reasonably determined by Landlord.


 


If at any time during the Term the present system of real
property taxation is changed so that a capital levy or other tax on the gross
rents received by Landlord with respect to the Property, or a federal, state,
county, municipal, or other local income, franchise, excise or similar tax,
assessment, levy, or charge (distinct from any now in effect) measured by or
based, in whole or in part, upon gross rents (“Substitute Taxes”), replaces all
or part of the ad valorem tax (or increases in such tax), then the Substitute
Taxes shall be a Real Property Tax.


 


5.03.                                        Personal
Property Taxes.  Tenant shall
pay directly all taxes charged against Tenant’s trade fixtures, furnishings,
equipment, inventory, or other personal property.  Tenant shall use its best efforts to have
personal property taxed separately from the Property.  Landlord shall notify Tenant if any of Tenant’s
personal property is taxed with the Property, and Tenant shall pay such taxes
to Landlord within thirty (30) days of such notice.


 


ARTICLE 6:   UTILITIES


 


6.01.                                        Utilities.  Tenant shall pay directly to
the proper authorities charged with the collection thereof all charge for
water, sewer, gas, electricity, telephone (singularly, “Utility Service”
and collectively, “Utility Services”) and other utilities or services
used or consumed on the Premises, whether called charge, tax, assessment, fee
or otherwise, including, without limitation, water and sewer use charges and
taxes, if any, all such charges to be paid as the same from time to time become
due.  It is understood and agreed that (i) Landlord
shall be responsible for bringing each Utility Service to a common switching
point(s) at the Building, which, in the case of electricity shall mean the
switch gear and not the transformer (collectively, the “Utility Switching
Points”) and separately metering such services at Landlord’s cost and
expense; (ii) Tenant shall pay for any and all costs to connect such
Utility Services from such Utility Switching Points to the Premises; (iii) Landlord
shall be under no obligation to furnish any Utility Services to the Premises
(beyond the foregoing responsibility to bring such Utility Services to the
Utility Switching Points); and (iv) Landlord shall not be liable for any
interruption or failure in the supply of any utilities to the Premises, except
to the extent expressly set forth in this Section 6.01.


 


To the extent permitted by
law, Landlord shall have the right at any time and from time to time during the
Term to contact for or purchase one or more Utility Services from any company
or third party providing Utility Services (the “Utility Service Provider”
or “Utility Service Providers”), which contracts or purchases, in
Landlord’s reasonable opinion, are likely to result in a reduction in costs for
Utility Services to the occupants of the Building.  Tenant, at no cost to Tenant, agrees to
reasonably cooperate with Landlord and the Utility Service Providers 


 


16

















 


and at all times and as
reasonably necessary, and on reasonable advance notice, shall allow Landlord
and the Utility Service Providers reasonable access to any utility lines,
equipment, feeders, risers, fixtures, wiring and any other such machinery or
personal property within the Premises and associated with the delivery of
Utility Services.  Tenant may, but shall
not be required to, purchase Utilities from the respective Utility Service
Providers.


 


In the event that there
shall be an interruption, curtailment or suspension of the elevator, electricity,
HVAC service, or water supply in the manner required to be provided in this
Lease or an interruption, curtailment or suspension of access to the Premises
(which event is not subject to Article 12 and no reasonably equivalent
alternative service or supply is provided by Landlord) that shall prevent
Tenant from using, and Tenant does not actually so use, all or a portion of the
Premises (a “Service Interruption”), and if (a) such Service
Interruption shall continue for at least five (5) consecutive Business
Days following receipt by Landlord of written notice from Tenant describing
such Service Interruption (the “Service Interruption Notice”) and (b) such
Service Interruption shall not have been caused, in whole or in part, by an act
or omission in violation of this Lease by Tenant or negligence of Tenant, or of
Tenant’s agents, servants, employees, contractors or visitors (a Service
Interruption that satisfies both of the foregoing conditions being referred to
hereinafter as a “Material Service Interruption”), then Tenant shall be
entitled (x) to an equitable abatement of Base Rent and Tenant’s Pro Rata
Share of Total Operating Costs, based on the nature and duration of the
Material Service Interruption, the area of the Premises affected, and the then
current Rent amounts, for the period that shall begin on the commencement of
such Material Service Interruption and that shall end on the day such Material
Service Interruption shall cease, and (y) if such Material Service
Interruption shall continue for at least six (6) months following Landlord’s
receipt of the Service Interruption Notice, to terminate this Lease.


 


ARTICLE 7:   INSURANCE


 


7.01.                                        Coverage.  Tenant shall maintain during
the Term insurance for the benefit of Tenant and Landlord (as their interests
may appear) from insurers rated at least A-/VII by A.M. Best, with terms
and coverages reasonably satisfactory to Landlord and with such increases in
limits (a) as Landlord may from time to time reasonably request provided
such coverages and increases are consistent with those required under other
leases, if any, between Landlord and Landlord’s affiliates and tenants engaged
in the Permitted Uses at the Property or at other properties owned or leased by
Landlord and its affiliates or (b) as required under the Ground Lease
provided, however, that Landlord shall not agree to an amendment of the Ground
Lease increasing such requirements unless the conditions set forth in (a) have
been satisfied.  Initially, Tenant shall
maintain the following:


 


(i)                  Commercial general liability
insurance naming Landlord, Ground Landlord, Landlord’s management, leasing and
development agents and Landlord’s mortgagee(s) from time to time as
additional insureds, with coverage for premises/operations, personal injury,
and contractual liability with combined single limits of liability of not less
than $5,000,000 for bodily injury and property damage per occurrence.


 


(ii)               Property insurance covering
property damage and business interruption. 
Covered property shall include all tenant improvements in the Premises
that Landlord has approved on the


 


17














 


condition that such
improvements are removed by Tenant at the expiration or earlier termination of
this Lease, office furniture, trade fixtures, office equipment, merchandise and
all other items of Tenant’s property on the Property.  Such insurance shall be written on an “all
risk” of physical loss or damage basis including the perils of fire, extended
coverage, windstorm, vandalism, malicious mischief, sprinkler leakage, flood
and earthquake, for the full replacement cost value of the covered items and in
amounts that meet any co-insurance clause of the policies of insurance, with a
deductible amount not to exceed $5,000.


 


(iii)            Workers’ compensation
insurance with statutory benefits and employers’ liability insurance in the
following amounts: each accident, $500,000; disease (policy limit), $500,000;
disease (each employee), $500,000.


 


Prior to the Lease
Commencement Date and on each anniversary of that date (or on the policy
renewal date).  Tenant shall give
Landlord certificate(s) evidencing such coverage and stating that it may
not be changed or canceled without at least thirty (30) days’ prior written notice
to Landlord and Tenant.  Insurance
maintained by Tenant shall be deemed to be primary insurance, and any insurance
maintained by Landlord shall be deemed secondary to it.


 


Landlord acknowledges that
Tenant may, at some point during the Term of this Lease after the Lease
Commencement Date, desire to establish a program of self-insurance.  Provided that Tenant provides evidence to
Landlord that Tenant’s financial condition and program of self-insurance are
satisfactory to Landlord as determined in Landlord’s sole and absolute
discretion.  Tenant may elect to
self-insure Tenant’s property and the parties shall enter into a mutually satisfactory
amendment to this Lease to address the terms of such self-insurance.


 


7.02.                                        Avoid
Action Increasing Rates.  Tenant shall
comply with Sections 9.01, 9.02, 9.03, and 9.04 and shall not, directly or
indirectly, use the Premises in any way which is legally prohibited or
dangerous to people or property or which may jeopardize or increase the cost of
any insurance coverage or require additional insurance.  Tenant shall cure any breach of this Section 7.02
within ten (10) days after notice from Landlord by (i) stopping any
use that jeopardizes any insurance coverage or increases its cost or (ii) paying
the increased cost of insurance.  Tenant
shall have no further notice or cure right under Article 14 for any such
breach.  Tenant shall reimburse Landlord
for all of Landlord’s costs incurred in providing any insurance that is attributable
to any special endorsement or increase in premium resulting from the particular
business or operations of Tenant, and any special or extraordinary risks or
hazards resulting therefrom, including without limitation, any risks or hazards
associated with the generation, storage and disposal of so-called biohazards or
medical waste.  Notwithstanding the
foregoing, Tenant’s use of the Premises for the Permitted Uses, generally (as
opposed to Tenant’s particular use) in compliance with the terms and conditions
of this Lease shall not be deemed legally prohibited or dangerous to people or
property for the purposes of this Section 7.02.


 


7.03.                                        Waiver
of Subrogation.  Landlord and
Tenant each waive any and every claim for recovery from the other for any and
all loss of or damage to the Property or any part of it, or to any of its
contents to the extent such loss or damage is covered by valid and collectible
property insurance.  Landlord waives any
and every such claim against Tenant which would have been covered had the
insurance policies required to be maintained by Landlord by this Lease been in 


 


18

















 


force, to the extent that
such loss or damage would have been recoverable under such policies.  Tenant waives any and every such claim
against Landlord which would have been covered had the insurance policies
required to be maintained by Tenant under this Lease been in force, to the
extent that such loss or damage would have been recoverable under such
policies.  This mutual waiver precludes
the assignment of any such claim by subrogation (or otherwise) to an insurance
company (or any other person), and Landlord and Tenant each agree to give
written notice of this waiver to each insurance company which has issued or
shall issue any property insurance policy to it, and to have the policy
properly endorsed, if necessary, to prevent invalidation of the insurance
coverage because of this waiver.


 


7.04.                                        Landlord’s
Insurance.  Landlord shall
purchase and maintain during the Term with insurance companies rated at least
A-/VII by A.M. Best the following insurance: (i) commercial general
liability insurance for incidents occurring in the Common Areas, with coverage
for premises/operations, personal and advertising injury, products/completed
operations and contractual liability with combined single limits of liability
of not less than $5,000,000 for bodily injury and property damage per
occurrence; and (ii) property insurance covering property damage to the
Building, including the Finish Work, and loss of rental income, on an “all risk”
of physical loss or damage basis, for full replacement cost value of the
Building, with co-insurance waived by inclusion of an agreed amount endorsement
as well as insurance against breakdown of boilers and other machinery as
customarily insured against, and upon written request of Tenant, Landlord shall
furnish Tenant with certificates of insurance evidencing said insurance.  As set forth in Section 4.02(a), a
portion of the cost thereof shall be borne by tenant.


 


ARTICLE 8:   COMMON
AREAS


 


8.01.                                        Common
Areas.  “Common Areas” means
all areas within the Property available for the common use of tenants of the
Property and not leased or held for the exclusive use of Tenant or other
tenants, including lobbies, common parking areas, common loading docks,
driveways, sidewalks, access roads, and landscaping and planted areas located
exclusively on the Property.  The initial
Common Areas (“Initial Common Areas”) are substantially as shown on Exhibit M
of this Lease.  Landlord, from time to
time, may change the size, location, nature and use of any of the Common Areas
or the Building itself, convert Common Areas into leasable areas, construct
parking facilities (including parking structures) in the Common Areas, and
increase or decrease Common Area land or facilities.  Tenant acknowledges that such activities may
result in inconvenience to Tenant.  All
such activities and changes are permitted as Landlord may determine;
however.  Landlord shall not materially
and adversely affect Tenant’s use of the Premises in the course of conducting
such activities or changes.


 


8.02.                                        Use of
Common Areas.  Tenant shall
use the Common Areas for the purposes intended, subject to such reasonable rules and
regulations of general applicability (“Rules and Regulations”) as
Landlord may establish or modify from time to time and as initially set forth
in Exhibit E, as amended by the letter from Landlord dated June 7,
2006.  Tenant shall abide by the Rules and
Regulations and shall use its best efforts to cause others who use the Common
Areas with Tenant’s express or implied permission to abide by the Rules and
Regulations.  At any time, Landlord may
close any Common Areas to perform any acts in the Common Areas as, in Landlord’s
reasonable judgment, are desirable to maintain or improve the Property provided
that Landlord shall use reasonable efforts to minimize any interference with
Tenant’s use and 


 


19

















 


occupancy of the Premises
for the Permitted Uses and shall not materially and adversely affect Tenant’s
use and occupancy of the Premises for the Permitted Uses for any prolonged
period.  Tenant shall not interfere with
the rights of Landlord, other tenants, or any other person entitled to use the
Common Areas.


 


8.03.                                        Vehicle
Parking.  Landlord shall provide
Tenant with twenty three (23) parking spaces. 
The parking spaces will be located in the parking garage located at 301
Binney Street.  Use of the parking spaces
shall be on a non-reserved basis.  If any
other tenants in the Building are granted reserved spaces in the parking
garage, Landlord agrees that the Tenant’s non-reserved spaces shall be located
within the parking garage at least as favorably for parking and access to the
entrance areas of the Building as such reserved spaces on a proportionate basis
(i.e. if another tenant receives 10 reserved spaces in a more favorable
location out of an allotment of 50 spaces, Tenant will be provided with an
equally favorable location for unreserved spaces in a similar proportion);
provided, however, that the provisions of this sentence shall not apply to (i) parking
for the residential parking areas serving the property known as 157 6th Street,
(ii) up to five reserved parking spaces for the benefit of other tenants
in the Building, (iii) any spaces required to be used for dedicated
purposes pursuant to the terms of the PTDM Agreement (such as zip car spaces or
car pooling spaces), and (iv) handicapped spaces or other spaces required
by law.  Tenant shall pay for such
parking passes to such spaces (whether or not so used) at Landlord’s then current
prevailing monthly rate for parking spaces. 
The prevailing monthly rate for parking spaces shall be subject to
change from time to time, provided that any such increases are commercially
reasonable as determined by the market rate for comparable parking spaces in
the Kendall Square area of the City of Cambridge. Tenant shall abide by all reasonable
rules and regulations applicable to the parking spaces provided by
Landlord pursuant to this Section 8.03, Tenant shall pay Landlord any
amounts due with respect to such parking spaces as Additional Rent.


 


Tenant, at its sole cost and
expense, shall comply with the applicable terms and conditions set forth in
that certain [illegible], which PTDM Agreement previously has been provided to
Tenant.  Furthermore, Tenant shall
reasonably cooperate with Landlord as reasonably required for Landlord to
fulfill its obligations under the PTDM Agreement.  Notwithstanding the foregoing, if, after the
six-month review required under the PTDM Agreement, Landlord is required to
incur additional (a) costs for capital improvements (e.g., street or
sidewalk improvements) or (b) costs not typical in the City of Cambridge
as mitigation for the Permitted Uses, then Tenant shall not be responsible for
such costs under this paragraph or as Operating Expenses.


 


8.04.                                        Operating
Expenses.  [Illegible]
operation, maintenance and repair of the Building and Property and of the
heating, ventilation and air conditioning (“HVAC”), plumbing, electrical,
utility and safety systems for the Common Areas and Building, including without
limitation: compliance with Landlord’s obligations under Section 10.03(c) of
this Lease; gardening and landscaping; snow removal; utility, water and sewage
services; maintenance of signs (other than tenants’ signs); supplies, materials
and equipment purchased or rented, total wage and salary costs paid to, and all
contract payments made on account of, all persons at or below the level of site
or building manager to the extent engaged in the operation, maintenance,
security, cleaning and repair of the Premises, including Social Security, old
age and unemployment taxes and so-called “fringe benefits”; services furnished
to tenants of the Building 


 


20

















 


at Landlord’s expense and
maintenance and repair of and services provided to or on behalf of the Building
performed by Landlord’s employees or by other persons undo contract with
Landlord; utilities consumed and expenses incurred in the operation,
maintenance and repair of the Building including, without limitation, oil, gas,
electricity (other than electricity to tenants in their demised promises if Tenant
is directly responsible for payment under this Lease on account of electricity
consumed by Tenant), water, sewer and snow removal; costs incurred by Landlord
to comply with the terms and conditions of the PTDM Agreement excqit to the
extent excluded pursuant to Section 8.03; workers’ compensation insurance
and property and liability insurance; personal property taxes; rental or lease
payments paid by Landlord for rented or leased personal property used in the operation
or maintenance of the Common Areas or Building; fees for required licenses and
permits; routine maintenance and repair of roof membrane, flashings, gutters,
downspouts, roof drains, skylights and waterproofing; maintenance and repair of
loading docks, parking areas and paving (including sweeping, striping,
repairing, resurfacing, and repaving); general maintenance and repair,
painting; lighting; cleaning; refuse removal; security and similar items;
reserves for roof replacement, exterior painting and other appropriate
reserves; and property management fees. 
Landlord may use third parties or affiliates to perform any of these
services, and the cost thereof to the extent the same does not exceed the
market costs of such services rendered by unaffiliated third parties shall be
included in Operating Expenses.  Landlord
shall make a reasonable allocation of the cost of any Operating Expenses
incurred jointly for the Property and any other property.  In addition, if Landlord from time to time
repairs or replaces any existing improvements or equipment to the Building
(including without limitation energy conservation improvements or other
improvements), then the cost of such items that are treated as capital expenses
pursuant to generally accepted accounting principles shall be amortized over
their reasonable life, together with an actual or imputed interest rate (at the
level then being charged by institutional first mortgagees for new permanent
first mortgage loans on buildings in the area which are similar to the Building)
and included in Operating Expenses.


 


[Illegible] the cost of
repairs or other work incurred by reason of fire, windstorm or other casualty
to the extent Landlord is reimbursed for such costs by insurance or would have
been reimbursed if Landlord maintained insurance in the manner required by this
Lease, except for reasonable deductibles paid under insurance policies
maintained by Landlord; costs associated with the operation of the business of
Landlord and/or the sale and/or financing of the Building, as distinguished
from the cost of Building operations, maintenance and repair; costs of disputes
between Landlord and its employees, tenants or contractors; any ground or
underlying lease rental; bad debt expenses and interest, principal, points and
fees on debts or amortization on any mortgage or other debt instrument
encumbering the Building or the Property; costs of any new improvements or
equipment added to the Building (including without limitation energy conservation
improvements or other improvements) that under generally accepted accounting
principles are properly classified as capital expenditures except to the extent
such items (a) will, in Landlord’s reasonable estimate, result in a
reduction in Operating Expenses (in which case Landlord shall only include each
year in Operating Expenses the amount of Landlord’s reasonable estimate of such
annual reduction in Operating Expenses, but may recover the aggregate of such anticipated
annual savings over the course of 12 months in equal installments, rather than
over the useful life of such capital item) or (b) are required by changes
in law occurring after the Delivery Date; provided, however, if Landlord leases
any items of new capital equipment, then the rentals and other costs paid
pursuant to such leasing shall be included in 


 


21

















 


Operating Expenses for the expense
year in which they were incurred; costs incurred by Landlord to the extent that
Landlord is reimbursed by insurance proceeds or is otherwise reimbursed by
third parties; depreciation, interest payments, and amortization, except on
equipment, materials, tools, supplies and vendor-type equipment purchased by
Landlord to enable Landlord to supply services Landlord might otherwise
contract for with a third party where such depreciation, amortization and
interest payment would otherwise have been included in the charge for such
third party’s services, all as determined in accordance with generally accepted
accounting principles, consistently applied, and when depreciation or
amortization is permitted or required, the item shall be amortized over its
reasonably anticipated useful life; advertising and promotional expenditures,
and costs of acquisition and maintenance of signs in or on the Building identifying
the owner of the Building or tenants; marketing costs, including leasing
commissions, attorneys’ fees (in connection with the negotiation and
preparation of letters of intent, leases, subleases and/or assignments), space
planning costs, and other costs and expenses incurred in connection with lease,
sublease and/or assignment negotiations and transactions with present or
prospective tenants or other occupants of the Building; costs, including
permit, license and inspection costs, incurred with respect to the installation
of tenants’ or other occupants’ improvements or incurred in renovating or
otherwise improving, decorating, painting or redecorating vacant space for
tenants or other occupants of the Building; expenses in connection with
services or other benefits that are not offered to Tenant or for which Tenant
is charged for directly; costs incurred by Landlord due to the violation by
Landlord or any tenant of terms and conditions of any lease of space in the
Building; management fees paid or charged by Landlord in connection with the
management of the Building to the extent such management fee is in excess of
the management fee customarily paid or charged by landlords of comparable
buildings in the vicinity of the Building; salaries and other benefits paid to
the employees of Landlord to the extent customarily included in or covered by a
management fee, provided that in no event shall Operating Expenses include
salaries and/or benefits attributable to personnel above the level of site or
building manager, rent for any office space occupied by Building management
personnel to the extent the size of such space exceeds 750 rentable square feet
or the rental rate for such office space exceeds the fair market rental value
of office space occupied by management personnel of comparable buildings in the
vicinity of the Building; amounts paid to Landlord or to subsidiaries or
affiliates of Landlord for goods and/or services in the Building to the extent
the same exceeds the costs of such goods and/or services rendered by
unaffiliated third parties on a competitive basis; Landlord’s general corporate
overhead and general and administrative expenses; services provided, taxes
attributable to, and costs incurred in connection with the operation of any
retail, restaurant and garage operations for the Building, and any replacement
garages or parking facilities; costs incurred in connection with upgrading the
Building to comply with laws, rules, regulations and codes in effect prior to
the Delivery Date; all assessments and premiums that are not specifically
charged to Tenant because of what Tenant has done, which can be paid by
Landlord in installments, shall be paid by Landlord and not included as
Operating Expenses except in the year in which the assessment or premium
installment is actually paid; costs arising from latent defects in the Base
Building Work or Finish Work or repair thereof; costs associated with the
operation of the business of the entity which constitutes Landlord as the same
are distinguished from the costs of operation of the Building, including
accounting and legal matters, costs of defending any lawsuits with any mortgage
(except as the actions of Tenant may be in issue); costs of selling,
syndicating, financing, mortgaging or hypothecating any of Landlord’s interest
in the Building; costs incurred in 


 


22

















 


connection with any disputes
between Landlord and its employees, between Landlord and Building management,
or between Landlord and other tenants or occupants; costs arising from the
gross negligence or willful misconduct of Landlord or other tenants or
occupants of the Building or their respective agents, employees, licensees,
vendors, contracted or providers of materials or services; and costs for
sculpture, paintings, or other objects of art exceeding those costs which are
reasonably and customarily incurred by landlords of similar buildings in the
same geographic area of the Building. 
Tenant shall pay Tenant’s Pro Rata Share of Operating Expenses in accordance
with Section 4.02.


 


ARTICLE 9:   USE OF
PREMISES


 


9.01.                                        Permitted
Uses.  Tenant may use the Premises
only for the Permitted Uses described in Section 1.11.  Tenant shall keep the Premises equipped with
appropriate safety appliances to the extent required by applicable laws or
insurance requirements.


 


9.02.                                        Indemnification.  Tenant shall assume
exclusive control of all areas of the Premises, including all improvements,
utilities, equipment, and facilities therein. 
Tenant is responsible for the Premises and any Tenant’s improvements,
equipment, facilities and installations, wherever located on the Property and
all liabilities, including without limitation tort liabilities incident
thereto.  Tenant shall indemnify, save
harmless and defend Landlord, Ground Landlord, each of their respective
members, managers, offices, mortgagees, agents, employees, independent contractors,
invitees and other persons acting under them (collectively, the “Indemnitees”)
from and against all liability, claim or cost (including reasonable attorneys’
fees) arising in whole or in part out of (i) any injury, loss, theft or
damage (except to the extent due to the negligence or willful misconduct of the
Indemnitees and their respective agents, contractors or employees)  to any person or property while on or about
the Premises or the Property; (ii) any condition within the Premises or
the Property, except for conditions existing prior to the Delivery Date (or, to
the extent applicable, the Partial Rent Commencement Date); (iii) the use
of the Premises or the Property by; or (iv) any act or omission of, Tenant
or persons claiming by, through or under Tenant, or any of its agents,
employees, independent contractors, suppliers or invitees.  Notwithstanding anything in the foregoing to
the contrary, Tenant shall not be liable for claims under clause (i) with
respect to the areas shown on Exhibit B-3 to the extent caused by
persons other than Tenant, its agents, employees, independent contractors,
suppliers or invitees so long as such areas are not separately demised or
otherwise restricted to Tenant’s access.


 


Subject in any and all
events to Section 7.03 of this Lease and subject to the limitations of Section 10.02(b) of
this Lease, Landlord shall indemnify, save harmless and defend Tenant, its
shareholders, directors, officers, members, managers, officers, mortgagees,
agents, employees independent contractors, invitees and other persons acting
under Tenant from and against all liability, claim or cost (including
reasonable attorneys’ fees) for injury to persons or property on the Premises
or Property arising in whole or in part out of any negligent act or omission on
the part of Landlord or any of its agents, contractors, customers, servants, or
employees during the Term of this Lease. 
The provisions of this Section 9.02 shall survive the expiration or
earlier termination of this Lease.


 


9.03.                                        Compliance
With Legal Requirements.  Tenant shall
not cause or permit the Premises or the Property to be used in any way that
violates any law, code, ordinance, restrictive 


 


23

















 


covenant, encumbrance,
governmental regulation, ordinance, permit, approval or any provision of the
Lease and Ground Lease (each a “Legal Requirement”) or constitutes a
nuisance or waste.  Notwithstanding
anything to the contrary, Section 5 of the Rules and Regulations
attached to this Lease as Exhibit E shall not be deemed to prohibit
anything not prohibited by this Section 9.03 or to expand or limit Tenant’s
obligations set forth in this Section 9.03.  Tenant shall obtain and pay for all permits
and shall promptly take all actions necessary to comply with all Legal Requirements,
including the Occupational Safety and Health Act, regulating Tenant’s specific
use of the Premises or the Property (as opposed to the Permitted Uses,
generally).  Tenant shall maintain in
full force and effect all certifications or permissions to provide its services
required by any authority having jurisdiction to authorize, franchise or regulate
such services.  Tenant shall be solely
responsible for procuring and complying at all times with any and all necessary
permits directly relating or incident to: the conduct of its specific
activities on the Premises (as opposed to general use of the Premises for the
Permitted Uses); its scientific experimentation, transportation, storage,
handling, use and disposal of any chemical or radioactive or bacteriological or
pathological substances or organisms or other hazardous wastes or
environmentally dangerous substances or materials or medical waste.  Tenant shall promptly give notice to Landlord
of any warnings or violations relative to the above received from any federal,
state, or municipal agency or by any court of law and shall promptly cure the
conditions causing any such violations. 
Tenant shall not be deemed to be in default of its obligations under the
preceding sentence to promptly cure any condition causing any such violation in
the event that, in lieu of such cure, Tenant shall contest the validity of such
violation of appellate or other proceedings permitted under applicable law,
provided that: (i) any such contest is made reasonably and in good faith, (ii) Tenant
makes provisions, including, without limitation, posting bond(s) or giving
other security, reasonably acceptable to Landlord to protect Landlord, the
Building and the Property from any liability, costs, damages or expense arising
in connection with such violation and failure to cure, (iii) Tenant shall
agree to indemnify, defend (with counsel reasonably acceptable to Landlord) and
hold Landlord harmless from and against any and all liability, costs, damages,
or expenses arising in connection with such condition and/or violation, (iv) Tenant
shall promptly cure any violation in the event that its appeal of such
violation is overruled or rejected, and (v) Tenant shall certify to
Landlord’s satisfaction that Tenant’s decision to delay such cure shall not
result in any actual or threatened bodily injury or property damage to
Landlord, any tenant or occupant of the Building or the Property, or any other
person or entity.


 


Notwithstanding the
foregoing or any other provision of this Lease, however, Tenant shall not be
responsible for compliance with any such laws, regulations, or the like (i) requiring
structural repairs or modifications or (ii) repairs or modifications to
the utility or Building service equipment or (iii) installation of new
Building service equipment, such as fire detection or suppression equipment
unless with respect to any of the aforementioned (i), (ii), or (iii), such repairs,
modifications, or installations shall (a) be due to Tenant’s particular
use of the Premises (as opposed to the Permitted Use, generally), (b) be
due to the negligence or willful misconduct of Tenant or any person claiming by
or through Tenant, or any of their agents, employees, or contractors, or (c) be
due to any alterations or additions made to the Premises by Tenant or any person
claiming by or through Tenant from time to time during the Term of the Lease.


 


Landlord shall deliver the
Premises to Tenant in compliance with all Legal Requirements applicable to the
Premises in effect as of the Delivery Date. 
Moreover, Landlord 


 


24

















 


covenants to Tenant that, as
of the Delivery Date, the Premises shall be in compliance with the City of Cambridge
zoning laws and state and local building laws, ordinances and regulations, and
that the Permitted Uses shall be an allowed use at the Premises under the City
of Cambridge zoning laws.  Landlord
further covenants to Tenant that (x) if required for obtaining and
maintaining a certificate of occupancy for and legal occupancy of the Premises,
Landlord shall diligently prosecute and complete the construction of at least
twenty (20) units of affordable housing at the Project (as defined in Section 17.19)
and (y) Landlord shall not obtain, nor shall it permit any other tenant or
occupant of the Building to obtain, a certificate of occupancy (other than a general
certificate of occupancy for the Base Building) prior to the date on which the
certificate of occupancy for the Premises is issued.


 


Landlord shall be
responsible for the compliance of the Common Areas, Common Facilities and
elements of the Building and Property under its exclusive control with all
Legal Requirements except to the extent compliance is required due to Tenant’s
particular use of the Premises, as opposed to the Permitted Uses generally.


 


9.04.                                        Environmental
Substances.  “Environmental
Law(s)” means all statutes, laws, rules, regulations, codes, ordinances,
standards, guidelines, authorizations and orders of federal, state and local
public authorities pertaining to any of the Environmental Substances or to
environmental compliance, contamination, cleanup or disclosures of any release
or threat of release to the environment, of any hazardous or toxic substances,
wastes or materials, any pollutants or contaminants which are included under or
regulated by any municipal, county, state or federal statutes, laws, rules,
regulations, codes, ordinances, standards, guidelines, authorizations or orders,
including, without limitation, the Toxic Substances Control Act, 15 U.S.C. §
2601, et seq.; the Clean WaterAct, 33 U.S.C. § 1251, et seq.; the
Clean Air Act, 42 U.S.C. § 7401, et seq.; the Safe Drinking Water Act,
42 U.S.C. § 300f-300j, et seq.; the Federal Water Pollution Control Act,
33 U.S.C. § 1321, et seq.; the Solid Waste Disposal Act, 42 U.S.0 §
6901, et seq.; the Comprehensive Environmental Response, Compensation and
Liability Act of 1980,42 U.S.C. Section 9601 et seq.; the Federal
Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq.;
the Superfund Amendments and Reauthorization Act of 1986, Public Law No. 99-499
(signed into law October 17, 1986); M.G.L c.21C; and oil and hazardous
materials as defined in M.G.L. c.21E, as any of the same are from time to time
amended, and the rules and regulations promulgated thereunder, and any
judicial or administrative interpretation thereof, including any judicial or
administrative orders or judgments, and all other federal, state and local
statutes, laws, rules, regulations, codes, ordinances, standards, guidelines,
authorizations and orders regulating the generation, storage, containment or
disposal of any Environmental Substances, including but not limited to those
relating to lead paint, radon gas, asbestos, storage and disposal of oil and
hazardous wastes, substances and materials, and underground and above-ground
oil storage tanks; and any amendments, modifications or supplements of any of
the foregoing.


 


“Environmental Substances”
means, but shall not be limited to, any hazardous substances, hazardous waste,
environmental substances, oil, petroleum products and any waste or substance,
which because of its quantitative concentration, chemical, biological,
radioactive, flammable, explosive, infectious or other characteristics,
constitutes or may reasonably be expected to constitute or contribute to a
danger or hazard to public health, safety or welfare or to the environment,
including without limitation any asbestos (whether or not friable) and any 


 


25

















 


asbestos-containing
materials, lead paint, waste oils, solvents and chlorinated oils,
polychlorinated biphenyls (PCBs), toxic metals, etchants, pickling and plating
wastes, explosives, reactive metals and compounds, pesticides, herbicides,
radon gas, urea formaldehyde foam insulation and chemical, biological and
radioactive wastes, or any other similar materials which are mentioned under or
regulated by any Environmental Law; and the regulations adopted under these
acts, and including any other products or materials subsequently found by an
authority of competent jurisdiction to have adverse effects on the environment
or the health and safety of persons.


 


Tenant shall not cause or
permit any Environmental Substances to be generated, produced, brought upon,
used, stored, treated or disposed of in or about or on the Building by Tenant,
its agents, employees, contractors, subtenants or invitees without (i) Landlord’s
prior written consent (except that Landlord’s prior written consent shall not
be required for infectious biological micro-organisms used in the Premises
subject to and in compliance with the conditions of Biosafety Level 1 or 2, as
established by the Office of Health and Safety and as further described in the
OHS publication Biosafety in Microbiological and Biomedical Laboratories (BMBL)
(4th Edition) and customary amounts of Environmental Substances customarily
used in connection with laboratory work with such micro-organisms, if such
materials are reasonably related to the conduct of Tenant’s business in the
Premises), and (ii) complying with all applicable Environmental Laws and
Legal Requirements pertaining to the transportation, storage, use or disposal
of such Environmental Substances, including obtaining proper permits.  Landlord may take into account any factors or
facts that Landlord reasonably believes relevant in determining whether to
grant its consent.  Landlord consents to
Tenant’s use of the Environmental Substances listed in Exhibit F.  From time to time at Landlord’s request,
Tenant shall execute affidavits, representations and the like concerning Tenant’s
best knowledge and belief regarding the presence or absence of Environmental
Substances on the Premises or the Property. 
Furthermore, on a quarterly basis beginning on the Delivery Date or more
often if reasonably required by Landlord’s mortgagee(s), Tenant shall provide
Landlord with a list detailing the types and amounts of all Environmental
Substances being generated, produced, brought upon, used, stored, treated or
disposed of by or on behalf of Tenant in or about or on the Premises, Building
or Property and, upon Landlord’s request, copies of any manifests or other
federal, state or municipal filings by Tenant with respect to such
Environmental Substances.  Tenant agrees
to pay the cost of any environmental inspection or assessment requested by any
lender that holds a security interest in the Property or this Lease, or by any
insurance carrier, to the extent that such inspection or assessment pertains to
any release, threat of release, contamination, claim of contamination, loss or
damage or determination of condition (together, “Environmental Incidents”)
in the Premises other than Environmental Incidents arising prior to the date
Tenant occupies the Premises for the conduct of its business or migrating to
the Premises from some other part of the Building through no fault, act or
omission of Tenant.


 


If Tenant’s transportation,
storage, use or disposal of Environmental Substances on the Property results in
the contamination of the soil or surface or ground water or loss or damage to
person(s) or property, Tenant agrees to: (a) notify Landlord
immediately of any release, threat of release, contamination, claim of
contamination, loss or damage; (b) after consultation with Landlord, clean
up the release, threat of release, or contamination in full compliance with all
applicable statutes, regulations and standards and (c) indemnify, defend
and hold Landlord, Ground Landlord, and the Indemnitees harmless from and
against any claims, suits, causes of 


 


26

















 


action, costs and fees,
including attorneys’ fees and costs, arising from or connected with any such release,
threat of release, contamination, claim of contamination, loss or damage.  In the event of such contamination, Tenant
agrees to cooperate fully with Landlord and provide such documents, affidavits
and information as may be requested by Landlord (1) to comply with any Environmental
Law or Legal Requirement, (2) to comply with the reasonable request of any
lender, purchaser or tenant, and/or (3) for any other reasonable reason
deemed necessary by Landlord.  Tenant
shall notify Landlord promptly in the event of any spill or other release of
any Environmental Substance at, in, on, under or about the Premises which is
required to be reported to a governmental authority under any Environmental Law
or Legal Requirement, shall promptly forward to Landlord copies of any notices
received by Tenant relating to alleged violations of any Environmental Law or
Legal Requirement and shall promptly pay when due any fine or assessment
against Landlord, Tenant, or the Premises relating to any violation during the
Term of any Environmental Law or Legal Requirement by Tenant, its employees,
agents, independent contractors, or invitees or with respect to the Premises or
Property.  If any governmental authority
files a lien against the Premises due to any act or omission, intentional or
unintentional, of Tenant, its agents, employees, or invitees, or for which
Tenant is responsible, resulting in the releasing, spilling, leaking, leaching,
pumping, emitting, pouring, emptying or, dumping of any Environmental
Substance, Tenant shall, within thirty (30) days from the date that Tenant is
first given notice of such lien (or within such shorter period of time as may
be specified by Landlord if such governmental authority takes steps to cause
the Premises to be sold pursuant to such lien) either (A) pay the claim
and remove the lien or (B) furnish a cash deposit, bond or such other
security as is satisfactory in all respects to Landlord and sufficient to
discharge the lien completely.


 


At Landlord’s election,
Landlord may inspect the Premises and/or file Property for Environmental
Substances at Landlord’s cost and expense within sixty (60) days of Tenant’s surrender
of the Premises at the expiration or earlier termination of this Lease.


 


Landlord shall indemnify,
defend and hold Tenant harmless from and against any and all liability, loss,
suits, claims, actions, causes of action, proceedings, demands, costs,
penalties, damages, fines and expenses, including, without limitation, reasonable
attorneys fees, consultants’ fees, laboratory fees and clean up costs, and the
costs and expenses of investigating and defending any claims or proceedings,
resulting from, or attributable to (i) the presence of any Hazardous
Materials on the Property or the Premises arising from the action or negligence
of Landlord, its officers, employees, contractor, agents and invitees, or
arising out of the generation, storage, treatment, handling, transportation,
disposal or release by Landlord of any Hazardous Materials at or near the
Premises or the Premises, and (ii) any violation(s) by the party
against whom indemnity is sought of any applicable law regarding Hazardous
Materials.


 


The provisions of this Section 9.04
shall survive the expiration or earlier termination of this Lease.


 


9.05.                                        Signs
and Auctions.  Landlord at
Landlord’s cost shall install Tenant’s suite number at the main entry to the
Premises and up to three identification strips on the Building directory for
Tenant and its affiliates and permitted Transferees.  Tenant shall not place any other signs on the
Building or Property or, if visible from the exterior of the Building, the
Premises, without Landlord’s prior written consent, which may be granted or
withheld in Landlord’s sole


 


27














 


discretion.  Tenant shall not conduct or permit any
auctions or sheriffs sales at the Property. 
Notwithstanding the foregoing. 
Tenant may, at Tenant’s cost, install a sign identifying Tenant on the entry
door to the Premises provided said sign conforms to Landlord’s Building
standard signage.


 


In the event Landlord
decides to allow tenant signage on the exterior of the Building, then subject
to applicable law and conformance with Landlord’s signage specifications,
Tenant shall have the right at Tenant’s expense to install signage on the
exterior of the Building in a location reasonably designated by Landlord (the “Building
Signage”) such that the ratio of the area of Tenant’s signage to the total
signage area is equal to Tenant’s Pro Rata Share.  Tenant shall be responsible for all costs
associated with said Building Signage including, but not limited to, all costs
in obtaining any and all permits and governmental approvals, all costs
associated with the installation, maintenance, repair, and removal of the
Building Signage at the expiration or earlier termination of the Lease Term,
and all costs associated with any restoration of the Building necessitated by
the removal of said Building Signage.


 


9.06.                                        Landlord’s
Access.  Landlord or its agents may
enter the Premises at all reasonable times to show the Premises to potential
buyers, investors or tenants or other parties; to inspect and conduct tests in
order to monitor Tenant’s compliance with Legal Requirements governing
Environmental Substances; for purposes described in Sections 2.01, 9.04 and/or
10.04(b) or for any other purpose Landlord reasonably deems
necessary.  Landlord shall give Tenant
reasonable prior notice (which may be oral) of such entry and shall not enter
Tenant’s technical areas (if Tenant has previously notified Landlord in writing
of the location and extent of such technical areas) unless accompanied by
Tenant’s representative (whom Tenant shall promptly provide).  However, in case of emergency, Landlord may
enter any part of the Premises without prior notice or Tenant’s representative
and shall make reasonable efforts to notify Tenant.


 


ARTICLE 10:   CONDITION
AND MAINTENANCE OF PREMISES AND PROPERTY


 


10.01.                                 Existing
Conditions.  [Illegible]
that with respect to recorded matters put into effect after the date of this
Lease, this Lease shall be subject to those recorded matters provided they do
not materially and adversely affect Tenant’s use and occupancy of the Premises
for the Permitted Uses.  Tenant
acknowledges that except for any express representations in this Lease, neither
Landlord nor any agent of Landlord has made any representation as to the condition
of the Property or the suitability of the Property for Tenant’s intended use
Tenant represents and warrants that Tenant has made its own inspection and
inquiry regarding the condition of the Property and is not relying on any
representations of Landlord or any Broker.


 


10.02.                                 Exemption
and Limitation of Landlord’s Liability.


 


10.02(a)  Exemption
of Landlord from Liability.  Tenant
shall insure its personal property under an all risk full replacement cost
property insurance policy.  Landlord
shall not be liable for any damage or injury to the person, property or
business (including loss of revenue, profits or data) of Tenant, Tenant’s employees,
agents, contractors, or invitees, or any other person on or about the Property;
provided, however, that this section 10.02(a) shall not exempt Landlord
from liability for Landord’s gross negligence or willful misconduct.  This exemption shall apply whether such
damage or injury is caused by (among other things): (i) fire, steam 


 


28

















 


electricity, water, gas,
sewage, sewer gas or odors, snow, ice, frost or rain; (ii) the breakage,
leakage, obstruction or other defects of pipes, faucets, sprinklers, wires,
appliances, plumbing, windows, air conditioning or lighting fixtures or any
other cause; (iii) any other casualty or any Taking; (iv) theft; (v) conditions
in or about Property or from other sources or places: or (vi) any act or
omission of any other tenant.  Landlord
shall not be liable for any such damage or injury even if its cause or the
means of repairing it is not accessible to Tenant.


 


10.02(b)  Limitation
on Landlord’s Liability.  Upon the transfer
of Landlord’s interest in this Lease, such transferor shall be relieved of all
liability for the performance of any obligations on the part of the Landlord
contained in this Lease provided that any successor landlord assumes all of the
obligations of Landlord under this Lease. 
The obligations of Landlord shall be binding upon the portion of the
Property including the Building and insurance, condemnation, and any sale
proceeds therefrom (the “Proceeds”), but not upon other assets of
Landlord (including without limitation the property and any improvements
thereon known as 301 Binney Street).  No
individual member, manager, officer, employee, partner, trustee, director,
stockholder, or beneficiary of Landlord shall be personally liable under this
Lease, and Tenant shall look solely to Landlord’s interest in the Property and
Proceeds in pursuit of its remedies, and the general assets of Landlord or any
such individual shall not be subject to sever, execution or other enforcement
procedure to satisfy Tenant’s remedies. 
In no event shall Landlord or its successors ever be liable for (i) any
consequential, indirect, incidental, special, reliance, exemplary or punitive
damages or (ii) any loss of revenue, profits or data.  In no event shall Tenant ever be liable for
any consequential, indirect, incidental, special, reliance, exemplary or
punitive damages, except as specifically set forth in this Lease including, but
not limited to, Section 3.02.


 


10.03.                                 Landlord’s
Obligations.


 


10.03(a)  Base
Building Work.  Tenant acknowledges
that Landlord is in the process of making mechanical system improvements to the
Building in substantial accordance with the plans and specifications described
in Exhibit I (the “Base Building Work”).


 


10.03(b)  Finish
Work.


 


(i)                                          Finish Work
Construction Documents. 
Landlord shall construct, at its sole cost and expense (except as
expressly set forth herein) certain tenant improvements necessary for Tenant’s
occupation of the Premises as further set forth on Exhibit J
attached (the “Finish Work”). 
Landlord shall prepare at its expense final plans and specifications and
construction documents (together, the “Finish Work Construction Documents”)
for the Finish Work, (which approval shall not be unreasonably withheld or
delayed).  Tenant shall have no right to
object to any element of the Finish Work Construction Documents shown on Exhibit J.  Tenant shall cooperate with Landlord as
reasonably necessary to allow Landlord to complete the Finish Work Construction
Documents.


 


Tenant understands that time
is of the essence to Landlord in causing the Delivery Date to occur as early as
possible, and will cooperate with Landlord to achieve the earliest possible
Delivery Date.  If Tenant shall fail to
act in a timely fashion as required hereunder on any construction-related
question or matter, then Tenant’s failure shall constitute a Tenant Delay 


 


29

















 


(as defined below).  The Delivery Date shall be deemed to have
occurred earlier than the actual date thereof by the number of days by which
Tenant’s failure to timely approve or take other action actually results in a
delay of Landlord’s Substantial Completion of the Base Building Work and/or
Finish Work.


 


(ii)   Finish Work Change Orders.  Tenant may, from time to time, by written order
to Landlord on a form reasonably specified by Landlord if Landlord so chooses (“Finish
Work Change Order”), request a change in the Finish Work shown on the
Finish Work Construction Documents. 
Landlord may delete from any Finish Work Change Order, and need not
cause to be performed any items or aspects of Finish Work that in Landlord’s
reasonable judgment (i) would materially delay the Base Building Work, (ii) would
materially increase the cost of operating the Building or increase the cost of
operating the Building or increase the cost of performing the Base Building
Work, (iii) are incompatible with the design, quality, equipment or
systems of the Building, (iv) would require unusual expense to readapt the
Premises to general purpose office and laboratory use or (v) otherwise do
not comply with the provisions of this Lease. 
By its execution of the Lease, and submission of any Finish Work Change
Orders, Tenant will be deemed to have approved and shall be legally responsible
for, such Finish Work Change Orders.


 


Notwithstanding the
foregoing, Landlord shall pay all costs (including both so-called hard and soft
costs) for performing the work in accordance with Finish Work Change Orders
numbered 1, 3, 6, 9, 10, 12, 13, 15-18, and 29-36, as referenced in Exhibit A,
attached to the First Amendment hereto, all of which Landlord hereby approves
and acknowledges shall be deemed part of the Finish Work to be performed by Landlord,
and Tenant shall not be required to reimburse Landlord for any such costs.  Landlord further acknowledges (i) that
none of the Finish Work Change Orders listed on such Exhibit A and
any work arising under such Finish Work Change Orders shall constitute a Tenant
Delay, as defined in Section 10.03(b)(vi) of this Lease, and (ii) that
as of the date of the First Amendment, Landlord has not given notice to Tenant
of any Tenant Delays under said Section 10.03(b)(vi) of this Lease
and, to the best of Landlord’s knowledge after due inquiry, there are not any
events that have occurred that, with the giving of notice and passage of time,
could constitute a Tenant Delay.  In
consideration for the agreement set forth in the preceding sentence, Tenant
shall, on the earlier of the Delivery Date or, the date that Tenant first takes
occupancy of all or any portion of the Premises for the conduct of its
business, pay to Landlord the sum of $100,000 as Additional Rent in immediately
available U.S. funds at Landlord’s address or at such other place as Landlord
may designate in writing.


 


(iii)            Performance of Finish Work
by Landlord.  Landlord is
authorized to proceed with the Finish Work shown on the Finish Work
Construction Documents.


 


(iv)                                   Punchlist.  On a date reasonably specified by Landlord
after Substantial Completion of the Base Building Work and the Finish Work (or
delivery of a portion of the Premises if Tenant takes partial occupancy, with
respect to such portion), Landlord and Tenant shall inspect the Building and
the Premises (or portion of the Premises) for the purpose of preparing a
mutually satisfactory list of the punchlist type items then remaining to be
completed (the “Final Punchlist”). 
Landlord shall submit the Final Punchlist to Tenant.  Items shall not be added to the Final
Punchlist by Tenant after it is delivered to Landlord.  If the Final Punchlist is not timely
delivered by Tenant, that the Finish Work (or portion of the Finish Work so inspected)



 


30

















 


shall be deemed final and
complete (except for matters shown on the version prepared by Landlord and
except for latent defects), and Landlord shall have no further obligation to
cause any other Finish Work with respect to such portion (except for punchlist
work shown on Landlord’s punchlist and correction of latent defects) to be
completed.  With respect to items on the
Final Punchlist not in dispute, Landlord shall cause such items to be completed
in a diligent manner and, in any event, within thirty (30) days (which time
period shall be extended for items which cannot reasonably be completed within
thirty (30) days) during regular business hours, but in a manner that will seek
to minimize interruption of Tenant’s use and occupancy.  With respect to any disputed Final Punchlist
items, Landlord and Tenant shall submit such dispute to Landlord’s architect
for resolution.


 


Except for latent defects
and uncompleted items of Finish Work and/or Base Building Work specified in one
or more Final Punchlists, Tenant shall be deemed to have accepted all elements
of Finish Work (or portion thereof if Tenant takes partial occupancy) and Base
Building Work on the Delivery Date or applicable Partial Rent Commencement
Date.  In the case of a dispute
concerning the completion of items of Finish Work and/or Base Building Work
specified in one or more Final Punchlists, such items shall be deemed completed
and accepted by Tenant upon the delivery to Tenant of a certificate of Landlord’s
architect that such items have been completed. 
In the case of latent defects in Finish Work and/or Base Building Work
appearing after the Delivery Date, Tenant shall be deemed to have waived any
claim for correction or cure thereof on the date nine (9) months following
the Delivery Date or applicable Partial Rent Commencement Date if Tenant has
not then given notice of such defect to Landlord.  With respect to items as to which Tenant his
given adequate and timely notice hereunder, Landlord shall exercise reasonable
efforts to cause Landlord’s contractor so to remedy, repair or replace any incomplete,
defective or malfunctioning aspects of Finish Work or Base Building Work that
materially affect Tenant’s occupancy of the Premises, such action to occur as
soon as practicable during normal working hours and so as to avoid any
unreasonable interruption of Tenant’s use of the Premises.  If timely and adequate notice has been given
and if Landlord has other guarantees, contract rights, or other claims against
contractors, materialmen or architects Landlord shall, with regard to any
incomplete, defective or malfunctioning aspects of Finish Work or Base Building
Work, exercise reasonable efforts to enforce such guarantees or contract
rights.  The foregoing shall constitute
Landlord’s entire obligation with respect to all incomplete, defective or
malfunctioning aspects of Finish Work. 
Notwithstanding the foregoing, Tenant’s rights with respect to latent
defects in the Base Building Work and uncompleted items of Base Building Work
shall only extend to those elements of Base Building Work that, if left
uncompleted or unrepaired, would have a material adverse effect on Tenant’s use
of the Premises.


 


(v)                                      Authorized
Representatives.  “Tenant’s
Authorized Representative” shall mean Kevin Robinson.  Tenant’s Authorized Representative shall have
full power and authority to act on behalf of Tenant on any matters relating to
Finish Work.  “Landlord’s Authorized
Representative” with respect to Finish Work and Base Building Work shall
mean [illegible].


 


(vi)                                   Tenant Delays.  A delay in the commencement or performance of
Finish Work as a result of any of the following is referred to herein as a “Tenant
Delay”):


 


31

















 


(A)                              a failure
timely to approve a substitute for any materials, equipment, designs,
processes, or products shown on the Finish Work Construction Documents that are
not readily available to Landlord’s contractor to acquire in a timely manner
and incorporate into the Finish Work in the ordinary course without delay,
provided such substitute is of substantially equal of greater quality and
utility,


 


(B)                                any Finish Work
Change Order causing a delay,


 


(C)                                any failure of
Tenant to act in a timely manner as required hereunder on any
construction-related question or matter,


 


(D)                               any request by
Tenant that Landlord delay the commencement of, or suspend the performance of,
any Finish Work (it being agreed that Landlord is not required to comply with
such request and may decline to comply therewith in its sole discretion),


 


(E)                                 any other act
or omission of Tenant with respect to its obligations hereunder, or any of its
officers, employers, agents, or contractors that actually results in a delay or


 


(F)                                 any reasonably
necessary rescheduling of the sequence of any Finish Work due to any of the
causes set forth in this Subsection 10.03(b)(vi)A)-(E).


 


For each day of Tenant Delay
actually resulting in a delay of Landlord’s Substantial Completion of the Base
Building Work and/or Finish Work, the Delivery Date shall be deemed to be one
day earlier than the actual date thereof. 
If any delay in Substantial Completion is the result of Force Majeure
and such delay would not have occurred but for a Tenant Delay, such delay shall
be deemed added to Tenant Delays.  Tenant
may propose a cure for such Tenant Delay within two full Business Days after
receiving such notice and, if Landlord reasonably believes that such cure will
eliminate the Tenant Delay, Tenant may implement such cure and such Tenant
Delay shall be deemed not to have occurred.


 


(vii)        Substantial Completion.  The Finish Work or any portion thereof if
Tenant partially occupies the Premises and the completion of the applicable
portion of the Finish Work excepting only (a) punch list type items which
shall include by way of example other uncompleted elements of construction,
decoration, painting, millwork or other work and mechanical adjustment which
will not interfere materially with Tenant’s beneficial use of the Premises and (b) matters
that cannot be completed owing to their seasonal nature.  The Base Building Work shall be deemed “Substantially
Completed” upon the issuance of a certificate of occupancy (temporary or
otherwise) and the completion of the Base Building Work excepting only (a) punch
list type items which shall include by way of example other uncompleted
elements of construction, decoration, painting, millwork or other work and
mechanical adjustment which will not interfere materially with Tenant’s
beneficial use of the Premises and (b) matters that cannot be completed
owing to their seasonal nature.  Tenant’s
taking occupancy of the Premises shall not relieve Landlord of its obligation
to proceed diligently to complete all punch-list items under this Section 10.03(b).


 


10.03(c)  Repair and
Maintenance.  Subject to Article 12,
Landlord shall maintain the Common Areas in good order, condition and
repair.  Subject to the provisions of Article 12,
land 


 


32

















 


except for damages caused by
any act or omission of Tenant or Tenant’s employees, agents, contractors, or
invitees.  Landlord shall keep the
foundation, roof, Building systems (up to the Utility Switching Points),
structural supports, exterior windows and exterior walls of the Building in
good order, condition and repair.  Except
to the extent contained entirely within the Common Areas.  Landlord shall not be obligated to maintain or
repair any interior windows, doors, plate glass or the surfaces of walls.  Tenant shall promptly report in writing to
Landlord any defective condition known to it which Landlord is required to repair.  Tenant waives the benefit of any present or
future law which provides Tenant the right to rcpm the Premises or Property at
Landlord’s expense or to terminate this Lease because of the condition of the
Property or Premises.


 


10.04.                                 Tenant’s
Obligations.


 


10.04(a)  Repair and
Maintenance.  Except for work that Section 10.03
or Article 12 requires Landlord to do, Tenant at its sole cost and expense
shall keep the Premises including without limitation all fixtures and equipment
now or hereafter on the Premises, or exclusively serving the Premises, but
excluding the exterior and structural elements of the Building and the Common
Areas and Building systems up to the Utility Switching Points, in good order,
condition and repair and at least as good order, condition and repair as they
are in on the Lease Commencement Date or may be put in during the Term,
reasonable wear and tear and damage by casualty only excepted; to keep in a
safe, secure and sanitary condition all trash and rubbish temporarily stored at
the Premises; and to make all repairs and replacements and to do all other work
necessary for the foregoing purposes whether the same may be ordinary or
extraordinary, foreseen or unforeseen. 
Landlord, at Tenant’s sole cost and expense, shall be responsible for
heating and air-conditioning systems serving the Premises to the extent that
such systems are not a part of the base Building systems, and Landlord may
enter into commercially reasonable contracts with appropriate and reputable
third-party service companies providing for the provision of such
services.  Tenant shall hire its own
cleaning contractor for the Premises.


 


If anything required
pursuant to this Section 10.04(a) to be repaired cannot be fully
repaired or restored, Tenant upon prior notice to Landlord (or Landlord, if
applicable) shall replace it at Tenant’s cost, even if the benefit or useful
life of such replacement extends beyond the Term provided, however, that (i) the
replacement has been approved in advance and in writing by Landlord, and (ii) the
property subject to replacement will become the property of Landlord pursuant
to the terms of this Lease at the conclusion of the Term, then within ninety
(90) days after the expiration of the Term, Landlord shall reimburse Tenant for
the unamortized portion of the capital replacement calculated as follows.  Upon receipt of notice from Tenant of the
need for such capital replacement, Landlord and Tenant shall cooperate to
determine the estimated cost of such replacement The actual cost of the
replacement, as documented by Tenant (or Landlord, if applicable) and subject
to Landlord’s approval (which shall not be unreasonably withheld), shall be
amortized over the useful life of such replacement as reasonably determined by
Landlord on a straight-line basis together with interest at the Prime interest
rate from time to time announced by Fleet National Bank (or any successor
financial institution).  Tenant shall
transfer to Landlord all of its rights and interests in any warranties related
to said replacement at the conclusion of the Term.  Tenant acknowledges that Landlord has the
right, but not the obligation, to reduce the amount payable at the conclusion
of the Term to Tenant pursuant to this paragraph by any amounts of Rent then
due and payable to Landlord.


 


33

















 


10.04(b)  Landlord’s
Right to Cure.  If Tenant does not
perform any of its obligations under Section 10.04(a), Landlord upon
twenty (20) days’ prior notice to Tenant (or without prior notice in the case
of an emergency) may perform such maintenance, repair or replacement on Tenant’s
behalf, and Tenant shall reimburse Landlord for all costs reasonably incurred,
immediately upon demand.


 


10.05.                                 Alterations,
Additions, and Improvements.


 


10.05(a)  “Tenant
Work” means any work by tenant on the Property, including demolitions,
installations, alterations, additions, apertures or other improvements in or to
the Premises, or any work involving a connection to Building systems, including
mechanical, plumbing, electrical, telecom or other data communications, but
does not include routine installation and removal of affixed, readily movable
personal property not connected to such Building systems.  Tenant shall indemnify and hold harmless
Landlord and the other Indemnitees from all injury, loss, claims or damage to
any person or property in connection with any Tenant Work.  This indemnification shall survive the
expiration or earlier termination of this Lease.


 


10.05(b)  Construction
Documents.  [illegible] (defined
below) shall be done in accordance with complete, consistent, final
construction drawings and specifications as described in Exhibit G,
approved in advance by Landlord in writing (the “Construction Documents”).  Without limiting the generality of the
foregoing, [illegible] (i) affects any structural component of the
Building (including exterior walls, exterior windows, core walls, roofs, or
floor slabs), (2) is compatible with the electrical or mechanical
components or systems of the Building, (3) does not conform to floor
loading limits or [illegible] including the Building exterior.  Landlord shall approve or disapprove any
Construction Documents in Landlord’s reasonable discretion within ten (10) Business
Days after receipt, with specific reasons for disapproval.  If Landlord disapproves such Construction
Documents, Tenant may make the changes reasonably required by Landlord, in
which case Landlord shall within five (5) Business Days thereafter approve
or disapprove (with specific reasons) such revised Construction Documents, or
Tenant may elect not to proceed with such work. 
This process shall continue until such Construction Documents are approved.


 


The Construction Documents
shall be prepared (or reviewed and stamped) by an architect (“Tenant’s
Architect”) registered in The Commonwealth of Massachusetts, experienced in
the design and construction of improvements and systems of the type
contemplated by this Lease in comparable buildings in the area in which the
Building is located and approved in advance by Landlord.  All mechanical, electrical and plumbing
engineering design shall be done by an engineer designated by Tenant and
approved in advance by Landlord.  Tenant
shall be solely responsible for the liabilities and expenses (except as set
forth in Section 10.05(c)) of all architectural and engineering services
relating to Tenant Work and for the adequacy, accuracy, and completeness of the
Construction Documents, even if Tenant’s Architect has been otherwise engaged
by Landlord in connection with the Building. 
Submission of the Construction Documents to Landlord for approval shall
be deemed a warranty by Tenant that all Tenant Work described in the
Construction Documents complies with all applicable Legal Requirements and
industry design standards, is not Systems or Structure Work (unless so noted),
and, with respect to all materials, equipment and special designs, processes or
products, does not infringe on any patent or other proprietary rights of
others.  If Landlord disapproves any
Construction 


 


34

















 


Documents, it shall state
the specific reasons.  Landlord’s
approval of Construction Documents shall create no liability or responsibility
on Landlord’s part for their completeness, design sufficiency or compliance
with Legal Requirements or insurance requirements.


 


10.05(c)  Performance
of Tenant Work.  Except for Minor
Work, Tenant shall not do any Tenant Work, or take any plans for Tenant Work to
the municipal inspection services or fire departments, without on each occasion
obtaining Landlord’s prior written consent, which consent shall not be
unreasonably withheld, conditioned, or delayed. 
All Tenant Work shall be at Tenant’s risk and its sole cost and expense,
and Tenant shall obtain at its sole expense all necessary permits and licenses
before undertaking any Tenant Work. 
Landlord shall cooperate as reasonably necessary with any required
filings.  Tenant shall reimburse Landlord
for Landlord’s reasonable costs of reviewing proposed Tenant Work, assisting
with governmental filings and providing construction supervision.  Notwithstanding the foregoing, Landlord’s
prior written consent shall not be required for any Tenant Work not affecting
the Systems or Structure Work that costs less than $25,000 in the aggregate per
year (“Minor Work”).  Except with
respect to Minor Work, Tenant shall employ for Tenant Work only contractors
approved in advance by Landlord in writing, which approval shall not be
unreasonably withheld, conditioned or delayed (each a “Tenant Contractor”).  Tenant and Tenant’s Contractors shall perform
all Tenant Work in a good and workmanlike manner, employing materials of
first-class quality and in compliance with all applicable Legal Requirements,
governmental policies, insurance requirements and the Building’s Rules and
Regulations.  Landlord may inspect Tenant
Work at reasonable times and eve notice of observed defects.  Tenant or Tenant’s Contractor shall keep
Landlord and its authorized representatives fully apprised and informed of the
construction process.  Each Tenant
Contractor working on the roof of the Building shall coordinate with Landlord’s
roofing contractor, shall comply with its reasonable requirements and shall not
violate existing roof warranties.  Tenant
Contractors shall not cause coordination difficulties on the Property, or delay
or impair any guaranties, warranties or obligations of any contractors of
Landlord.  Tenant is responsible for
requiring the Tenant Contractors to comply with all applicable provisions of
this Lease.


 


Before beginning any Tenant
Work, (1) Tenant shall give Landlord (A) copies of all required
permits and approvals, (B) certificates of the insurance described in Exhibit H-1
and any other insurance Landlord may require covering any additional hazards
due to such work, and (C) if reasonably requested by Landlord with respect
to any Tenant Work (other than Minor Work), a lien bond in recordable form
pursuant to applicable Massachusetts law (or such other protection against
liens as Landlord may reasonably require) issued by a responsible insurance
company qualified to do business in Massachusetts and reasonably approved by
Landlord; provided, however, that in lieu of such bond, Tenant may furnish
Landlord with lien waivers executed by all Tenant Contractors performing any
part of such Tenant Work; (ii) Tenant shall provide certification of the
insurable value of the work in question for casualty insurance purposes and (iii) all
of the other conditions of this Lease regarding Tenant Work must be
satisfied.  Landlord may, as a condition
of its approval of any Tenant Work (other than Minor Work), require Tenant to
deposit with Landlord a bond, letter of credit or other similar security in the
amount of Landlord’s reasonable estimate of the value of such Tenant Work
securing Tenant’s obligations to make payments for such Tenant Work.  In the event Tenant furnishes Landlord with
security for the Tenant Work pursuant to the foregoing sentence, Landlord
agrees to disburse to Tenant from such security, or permit the reduction of
such security, for payment of 


 


35

















 


the costs of Tenant Work
actually incurred by Tenant upon delivery to Landlord of evidence reasonably
satisfactory to Landlord that such costs have been paid for and mechanics’ lien
waivers with respect to such work.


 


Tenant must schedule and
coordinate all aspects of work with the Building manager and Building engineer
and shall make prior arrangements for elevator use with the Building
manager.  If an operating engineer is
required by any union regulations, Tenant shall pay for such engineer.  If shutdown of risers and mains for
electrical, mechanical and plumbing work is required, such work shall be
supervised by Landlord’s representative. 
If special security arrangements must be made (e.g., in connection with
work outside normal business hours), Tenant’s Contractor or Tenant shall pay
the actual cost of such security.  No
work shall be performed in Building mechanical or electrical equipment rooms
without Landlord’s approval, which approval shall not be unreasonably withheld
or delayed, and all such work shall be performed under Landlord’s
supervision.  Except in case of
emergency, at least forty-eight (48) hours’ prior notice must be given to the
Building management office prior to the shutdown of fire, sprinkler and other
alarm systems, and in case of emergency, prompt notice shall be given.  In the event that such work unintentionally
alerts the Fire or Police Department or any private alarm monitoring company through
an alarm signal, Tenant shall be liable for any fees or charges levied in
connection with such alarm.  Tenant shall
pay to Landlord such actual out-of-pocket third-party charges as may from time
to time be in effect with respect to any such shutdown.  All demolition, installations,  removals or other work that is reasonably
likely to inconvenience other tenants or disturb Building operations must be
scheduled with e Building manager at least twenty-four hours in advance.


 


Installations within the Premises
and in ceiling plenums below the, Premises shall not interfere with existing
services and shall be installed so as not to unreasonably interfere with
subsequent installation of ceilings or services for other tenants.  Redundant electrical, control and alarm
systems and mechanical equipment and sheet metal used or placed on the Property
during construction and not maintained as part of Tenant’s use of the Premises
must be removed as part of the work.


 


Each Tenant Contractor shall
take all reasonable steps to assure that any work is carried out without
disruption from labor disputes arising from whatever cause, including disputes
concerning union jurisdiction and the affiliation of workers employed by said
Tenant Contractor or its subcontractors. 
Tenant shall be responsible for, and shall reimburse Landlord for, all
actual costs and expenses, including reasonable attorneys’ fees incurred by
Landlord in connection with the breach by any Tenant Contractor of such
obligations.  If Tenant does not promptly
resolve any labor dispute caused by or relating to any Tenant Contractor,
Landlord may in its sole discretion request that Tenant remove such Tenant
Contractor from the Property, and if such Tenant Contractor is not promptly
removed, Landlord may prohibit such Tenant Contractor from entering the
Property.  At all times while performing
construction work, Tenant and each Tenant Contractor shall not discriminate
against any individual because of race, color, sex, religion or national origin
and shall comply with all applicable laws, regulations and equal opportunity
policies generally adhered to by comparable buildings in the city or town in
which the Building is located.


 


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Upon completion of any
Tenant Work, Tenant shall give to Landlord (1) a copy of the permanent
certificate of occupancy (if one is legally required) and any other final
governmental approvals required for such work, (ii) copies of “as built”
plans and all construction contracts and (iii) proof of payment for all
labor and materials.


 


10.05(d)  Condition
of Premises.  Except as set forth in Section 10.03
with respect to the Base Building Work and/or Finish Work, Tenant shall accept
the Premises in their condition as of the Delivery Date of the Premises to
Tenant “as is” and subject to the Ground Lease, all recorded matters and Legal
Requirements provided, however, that with respect to recorded matters put into
effect after the date of this Lease, this Lease shall be subject to those
recorded matters provided they do not materially and adversely affect Tenant’s
use and occupancy of the Premises for the Permitted Uses.


 


10.05(e)  No Liens.  Except for Finish Work and Base Building
Work, Tenant shall pay when due all claims for labor and materials furnished to
the Premises.  Tenant shall give Landlord
at least ten (10) days’ prior written notice before beginning any work on
the Property, whether or not Landlord’s consent to such work is required.  Landlord may record and post notices of
non-responsibility on the Premises.  If
any mechanic’s lien (or any similar lien relating to labor and materials) filed
against any part of the Property is claimed to be attributable to Tenant, its
agents, employees, or -contractors, Tenant shall discharge it or bond over it
within ten (10) days after Tenant has notice (from any source) of the
lien.


 


10.06.                                 Condition
upon Termination.  At the
expiration or earlier termination of this Lease, Tenant (and all persons
claiming by, through or under it) shall, without requiring any notice, surrender
the Premises (including all Finish Work and Tenant Work), and all replacements
thereof, except such additions, alterations, and other Tenant Work as Landlord
may direct to be removed at the time Landlord approves the plans therefor.  The Premises shall be surrendered to Landlord
free and clear of any mechanic’s liens (or any similar lien relating to labor
and materials) filed against any part of the Premises and free and clear of any
financing or other encumbrance on any equipment and/or Tenant Work to be
surrendered with the Premises.  Upon
surrender of the Premises Tenant shall give Landlord all keys and security
cards or codes to the Premises.  Except
as specified in this Section 10.06 or as Landlord directs, Tenant shall
remove all of its trade fixtures, wire, cable, fiber (but not conduit, unless
Landlord shall so request), any personal property and all Tenant’s signs
wherever located.  Tenant shall repair
any damage to the Premises and/or to the Property which results in the course
of any removal and shall restore the Premises and the Property to a fully
functional and tenantable condition, including filling all floor holes,
removing all disconnected wiring back to junction boxes and replacing all
damaged ceiling tiles.  Tenant shall
yield up the Premises broom-clean and in good order, repair and condition,
except for reasonable wear and tear (or damage by casualty or taking).  Any property not removed pursuant to this Section 10.06
within thirty (30) days after the expiration or termination of the Lease shall
be deemed abandoned and may be removed and disposed of by Landlord, and Tenant
shall pay to Landlord the cost and expense of such removal and disposition and
of any incidental repairs to the Premises.


 


10.07.                                 Decommissioning
of the Premises.  Prior to the
expiration of this Lease (or within sixty (60) days after any earlier
termination), Tenant shall clean and otherwise decommission all interior
surfaces (including floors, walls, ceilings, and counters), process piping,
process supply


 


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lines, process waste lines
and process plumbing in the Premises, and all exhaust or other ductwork in the
Premises, in each case which has carried or released or been exposed to any Environmental
Substances (as defined in Section 9.04 hereof), and shall otherwise clean
the Premises so as to permit the report hereinafter called for by this Section 10.07
to be issued.  Prior to the expiration of
this Lease (or within sixty (60) days after any earlier termination), Tenant,
at Tenant’s expense, shall obtain for Landlord a report addressed to Landlord
(and, at Tenant’s election, Tenant) by a reputable licensed environmental
engineer that is designated by Tenant and acceptable to Landlord in Landlord’s
reasonable discretion (which shall not be unreasonably delayed; the
aforementioned sixty-(60)-day period shall be extended one (1) day for
each day Landlord delays its approval beyond five (5) Business Days),
which report shall be based on the environmental engineer’s inspection of the
Premises and shall show:


 


(i)                  that the Environmental
Substances, to the extent, if any, existing prior to such decommissioning, have
been removed as necessary so that the interior surfaces of the Premises (including
floors, walls, ceilings, and counters), process piping, process supply lines,
process waste lines and process plumbing, and all such exhaust or other
ductwork in the Premises, may be reused by a subsequent tenant or disposed of
in compliance with applicable Environmental Laws (as defined in Section 9.04
hereof) without taking any special precautions for Environmental Substances,
without incurring special costs or undertaking special procedures for demolition,
disposal, investigation, assessment, cleaning or removal of Environmental
Substances and without incurring regulatory compliance requirements or giving
notice in connection with Environmental Substances; and


 


(ii)               that the Premises may be
reoccupied for office or laboratory use, demolished or renovated without taking
any special precautions for existing Environmental Substances, without
incurring special costs or undertaking special procedures for disposal,
investigation, assessment, cleaning or removal of Environmental Substances and
without incurring regulatory requirements or giving notice in connection with
Environmental Substances.


 


Further, for purposes of
clauses (i) and (ii): (a) materials previously or hereafter generated
from operations shall not be deemed part of the Premises, and (b) “special
costs” or “special procedures” shall mean costs or procedures, as the case may
be, that would not be incurred but for the nature a the Environmental
Substances as Environmental Substances instead of non-hazardous materials.  The report shall include reasonable detail
concerning the clean-up location, the tests run and the analytic results.


 


If Tenant fails to perform
its obligations under this Section 10.07, without limiting any other right
or remedy, Landlord may, on five (5) Business Days’ prior written notice
to Tenant perform such obligations at Tenant’s expense, and Tenant shall
promptly reimburse Landlord upon demand for all out-of-pocket costs and
expenses incurred by Landlord in connection with such work.  In addition, any such reimbursement shall
include a ten percent (10%) administrative fee (but in no event less than
$1,000) to cover Landlord’s overhead in undertaking such work.  Tenant’s obligations under this Section 10.07
shall survive the expiration or earlier termination of this Lease.


 


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ARTICLE 11:   ROOFTOP
LICENSE; ANTENNAS


 


11.01.                                 Rooftop
License.  Effective as of the Delivery
Date, Landlord grants Tenant the appurtenant, exclusive, and irrevocable
(except upon the expiration or earlier termination of this Lease) rights at no
additional charge, but otherwise subject to the terms and conditions of this
Lease: (a) to use the portions of the roof of the Building shown on Exhibit B-3
(the “Rooftop Installation Areas”) to operate, maintain, repair and
replace rooftop mechanical equipment appurtenant to the Permitted Uses
installed as part of the Finish Work or otherwise as permitted pursuant to Section 10.05
(“Tenant’s Equipment”) and (b) to install, operate, maintain,
repair and replace an antenna not to exceed 18 inches in diameter and other
related communications equipment (the “Antenna’) in a location to be
mutually agreed upon between Landlord and Tenant (the “Antenna Installation
Area”).  Tenant’s Equipment and the
Antenna located in the Rooftop Installation Areas are defined together as the ‘Rooftop
Equipment.”


 


11.02.                                 Installation
and Maintenance of Rooftop Equipment.  Tenant shall
install the Antenna at its sole cost and expense, at such times and in such
manner as Landlord may reasonably designate and in accordance with all of the
applicable provisions of this Lease regarding Tenant Work.  Tenant shall not install or operate the
Antenna until it receives prior written approval of the Construction Documents
in accordance with Section 10.05(b). 
Landlord may withhold approval if the installation or operation of the
Antenna reasonably would be expected to damage the structural integrity of the
Building.


 


Tenant shall engage Landlord’s
roofer before beginning any rooftop installations or repairs of the Rooftop
Equipment, whether under this Article 11 or otherwise, and shall always
comply with the roof warranty governing the protection of the roof and
modifications to the roof.  Tenant shall
use its reasonable efforts to obtain a letter from Landlord’s roofer following
completion of such work stating that the roof warranty remains in effect.  Tenant, at its sole cost and expense, shall
inspect the Rooftop Installation Areas and Antenna Installation Area at least
once a month and correct any loose bolts, fittings or other appurtenances and
shall repair any damage to the roof caused by the installation of the Antenna
or the operation of the Rooftop Equipment Tenant covenants that the
installation, existence, maintenance and operation of the Antenna shall not
violate any Legal Requirements or constitute a nuisance.  Tenant shall pay Landlord on demand (i) all
applicable taxes or governmental charges, fees, or impositions imposed on
Landlord because of Tenant’s use of the Rooftop Installation Areas and (ii) the
amount of any increase in Landlord’s insurance premiums as a result of the
Antenna installation.


 


11.03.                                 Indemnification.  Tenant agrees that the
installation, operation and removal of the Antenna shall be at its sole
risk.  Tenant shall indemnify and defend
Landlord and the other Indemnitees against any liability, claim or cost,
including reasonable attorneys’ fees, incurred in connection with the loss of
life, personal injury, damage to property or business or any other loss or
injury (except to the extent due to the negligence or willful misconduct of
Landlord or its employees, agents, contractors or invitees) arising out of the
installation, use, operation, or removal of the Antenna by Tenant or its
employees, agents, contractors, or invitees, including any liability arising
out of Tenant’s violation of this Article 11.  Landlord assumes no responsibility for
interference in the operation of the Antenna caused by other tenants’
telecommunications equipment, or for interference in the operation of other
tenants’ 


 


39

















 


telecommunications equipment
caused by the Antenna.  The provisions of
this Section 11.03 shall survive the expiration or earlier termination of
this Lease.


 


11.04.                                 Removal
of Antenna.  Upon the
expiration or earlier termination of the Lease, Tenant, at its sole cost and
expense, shall (i) remove the Antenna from the Antenna Installation Area
in accordance with the provisions of this Lease regarding Tenant Work and (ii) leave
the Antenna Installation Area in good order and repair, reasonable wear and tear
excepted.  If Tenant does not remove the
Antenna when so required, Landlord may remove and dispose of it and charge
Tenant for all costs and expenses incurred.


 


11.05.                                 Interference
by Antenna.  Landlord may
grant future roof rights to other parties, and Landlord shall be contractually
obligated to cause such other parties to minimize interference with the
Antenna.  If the Antenna (i) causes
physical damage to the structural integrity of the Building, (ii) materially
interferes with any telecommunications, mechanical or other systems located at
or servicing (as of the Lease Commencement Date) the Building or any building,
premises or location in the vicinity of the Building, (iii) interferes
with any other service provided to other tenants in the Building by rooftop
installations installed prior to the installation of the Antenna or (iv) interferes
with any other tenants’ business, in each case in excess of that permissible
under F.C.C. or other regulations (to the extent that such regulations apply
and do not require such tenants or those providing such services to correct
such interference or damage), Tenant shall within two (2) Business Days of
notice (which may be oral) of a claim of interference or damage cooperate with
Landlord or any other tenant or third party making such claim to determine the
source of the damage or interference and effect a prompt solution at Tenant’s expense
(if the Antenna caused such interference or damage).  In the event Tenant disputes Landlord’s
allegation that the Antenna is causing a problem with the Building (including,
but not limited to, the electrical, HVAC, and mechanical systems of the
Building) and/or any other Building tenants’ equipment in the Building, in
writing delivered within two (2) Business Days of receiving Landlord’s
notice claiming such interference, then Landlord and Tenant shall meet to
discuss a solution, and if within seven (7) days of their initial meeting
Landlord and Tenant are unable to resolve the dispute, then the matter shall be
submitted to arbitration in accordance with the provisions set forth below.


 


The parties shall direct the
Boston office of the American Arbitration Association to appoint an arbitrator
who shall have a minimum often (10) years’ experience in commercial real
estate disputes and who shall not be affiliated with either Landlord or
Tenant.  Both Landlord and Tenant shall
have the opportunity to present evidence and outside consultants to the arbitrator.


 


The arbitration shall be
conducted in accordance with the commercial real estate arbitration rules of
the AAA insofar as such rules are not inconsistent with the provisions of
this Lease (in which case the provisions of this Lease shall govern): The cost
of the, arbitration (exclusive of each party’s witness and attorneys’ fees, which
shall be paid by such party) shall be borne equally by the parties.


 


Within ten (10) days of
appointment, the arbitrator shall determine whether or not the Antenna is
causing a problem with the Building and/or any other Building tenants’
equipment in the Building, and the appropriate resolution, if any.  The arbitrator’s decision shall be final and 


 


40

















 


binding on the parties.  If Tenant shall fail to cooperate with
Landlord in resolving any such interference or if Tenant shall fail to
implement the arbitrator’s decision within ten (10) days after it is
issued, Landlord may at any time thereafter (i) declare an Event of
Default and pursue the remedies set forth in Section 14 of this Lease
and/or (ii) relocate the item(s) of the Antenna in dispute in a
manner consistent with the arbitral decision.


 


11.06.                                 Relocation
of Antennas.  Based on
Landlord’s good faith determination that such a relocation is necessary,
Landlord reserves the right to cause Tenant to relocate the Antenna located on
the roof to comparably functional space on the roof by giving Tenant prior
notice of such intention to relocate.  If
within thirty (30) days after receipt of such notice Tenant has not agreed with
Landlord on the space to which the Antenna is to be relocated, the timing of
such relocation, and the terms of such relocation, then Landlord shall have the
right to make all such determinations in its reasonable judgment.  Landlord agrees to pay the reasonable cost of
moving the Antenna to such other space, taking such other steps necessary to
ensure comparable functionality of the Antenna, and finishing such space to a
condition comparable to the then condition of the current location of the
Antenna.  Tenant shall arrange for the relocation
of the Antenna within sixty (60) days after a comparable space is agreed upon
or selected by Landlord, as the case may be. 
In the event Tenant fails to arrange for said relocation within the
sixty-(60)-day period, Landlord shall have the right to arrange for the
relocation of said Antenna at Landlord’s expense, all of which shall be
performed in a manner designed to minimize interference with Tenant’s business.


 


ARTICLE 12:   DAMAGE
OR DESTRUCTION; CONDEMNATION


 


12.01.                                 Repair
and Restoration.  If the Premises
or the Building (including machinery or equipment used in its operation) are
damaged by fire or other casualty, or if any part of the Property is damaged by
a taking or condemnation by any competent authority for any public or
quasi-public use or purpose (a “Taking”), and this Lease does not
terminate pursuant to this Article 12, Landlord shall repair and restore
the damage with reasonable promptness, subject to reasonable delays for
insurance adjustments, Takings claims and matters beyond Landlord’s reasonable
control.  Landlord is not required to
repair or restore any work done by Tenant at the Property, except to the extent
of the proceeds of insurance (a) carried by Tenant and timely received by
Landlord if Landlord has conditioned its approval of such work on Tenant’s
removal at the expiration of the Term or (b) carried by Landlord with
respect to such improvements.  Any other
repairs or restoration shall be done at Tenant’s sole cost and expense subject
to Landlord’s prior approval and all applicable provisions of this Lease.  Tenant acknowledges that Landlord is entitled
to the full proceeds of any insurance coverage, whether carried by Landlord or
Tenant, for damage to any work done by Tenant on the Property which would
become the Landlord’s property upon the termination of this Lease.  Landlord shall have no liability to Tenant,
and Tenant shall not be entitled to terminate this Lease, by virtue of any
delays in completing such repairs and restoration except to the extent set
forth in Section 12.02 or Section 12.03.  Base Rent and Additional Rent shall abate on
those portions of the Premises that from time to time are tenantable and unoccupied
by Tenant as a result of such damage. 
Tenant shall have no right to share in any condemnation award or in any
judgment for damages caused by any Taking, except that Tenant shall receive the
proceeds of any separate award for the value of Tenant’s improvements to the
Property, relocation expenses, or personal property.


 


41

















 


12.02.                                 Termination
After Casualty.  If in Landlord’s
estimate the Premises cannot be restored within two-hundred forty (240) days
from the date of any fire or other casualty or a Taking (as defined in Section 12.01),
Landlord, within ninety (90) days after such fire or casualty or Taking, shall
notify Tenant of the estimated date of such restoration.  Within thirty (30) days after such notice,
time being of the essence, Tenant may notify Landlord that it is terminating
this Lease, effective as of the date of Tenant’s notice.  If Landlord fails to promptly commence and
diligently complete such restoration within 240 days from the date of any fire
or other casualty, Tenant may elect to terminate this Lease upon 30 days’ prior
written notice to Landlord; provided, however, that such termination election
shall be null and void if Landlord completes such restoration with 30 days of
such notice.


 


If any such damage (i) makes
25% or more of the Building untenantable or causes general Building systems to
be inoperable and in Landlord’s estimate cannot be repaired within one hundred
eighty (180) days from the date of such damage, or (iii) occurs within the
last Lease Year, Landlord, within ninety (90) days after such damage occurs,
may terminate this Lease as of the date of such damage by giving Tenant written
notice of termination.  If Landlord
determines that the insurance proceeds are insufficient to complete the
restoration at any time after the casualty, Landlord may elect to terminate the
Lease by thirty (30) days’ prior written notice to Tenant.


 


12.03.                                 Termination
After Taking.  If the Property
or the Building (or any portion of the Building, the loss of which would
require reconfiguration or restoration which Landlord reasonably estimates would
cost more than 25% of the then current replacement cost of the Building) is
subject to a Taking, Landlord may within thirty (30) days of the vesting date
of such Taking in its sole discretion terminate this Lease upon not less than
sixty (60) days’ notice to Tenant.


 


If any Taking (i) renders
25% or more of the Building untenantable or (ii) causes general Building
systems to be inoperable and they cannot be repaired in Landlord’s reasonable estimate
within one hunched eighty (180) days from the date of such Taking, or occurs
within the last Lease Year, Landlord, within ninety (90) days after such
Taking, may terminate this Lease as of the date of such Taking by giving Tenant
written notice of termination.  If Landlord
determines that the Taking proceeds are insufficient to complete the
restoration at any time after the Taking, Landlord may elect to terminate the
Lease by thirty (30) days’ prior written notice to Tenant.


 


ARTICLE 13:   ASSIGNMENT
AND SUBLETTING


 


13.01.                                 Landlord’s
Consent Required.  Except for a
Permitted Transfer, as defined below, Tenant shall not transfer any part of the
Premises or of its interest in this Lease to any other entity, whether by sale,
assignment, mortgage, sublease, license, transfer, operation of law or act of
Tenant (each a “Transfer”) without Landlord’s prior written consent as
provided in Section 13.02 below. 
Consent to one Transfer does not imply consent to any other Transfer or
waive the consent requirement.  Any
attempted Transfer without consent shall be void and shall be a non-curable
breach of this Lease.  Any entity to
which a Transfer is made is a “Transferee.”


 


42

















 


Landlord may consent to
Transfers or modifications of this Lease by any Transferee without Tenant’s consent,
but with notice to Tenant within thirty (30 .days after such Transfer or
modification.  Tenant shall not be bound
by such modifications unless it has given its prior written consent, but shall
not be released from its obligations or liabilities under this Lease without
regard to such modifications.


 


The following transactions
(any of them, a “Permitted Transfer”) shall not require the consent of
Landlord provided that Landlord shall receive prior notice thereof plus
reasonable evidence upon closing that the transaction is in fact one of the
following (and provided further that the proposed Transfer complies with all
other provisions of this Lease, including, without limitation, this Article 13,
other than the first paragraph of this Section 13.01, does not alter
Landlord’s rights under the Lease, and does not impose any additional
obligation on Landlord):


 


(a) Any
Transfer to an entity acquiring all or substantially all of the stock or assets
of Tenant, whether by way of merger, consolidation or otherwise, so long as the
resulting entity has (a) a net worth at least equal to or greater than $5
million and (b) a net worth and financial condition as good as Tenant’s at
the time immediately prior to such transfer;


 


(b) Any
Transfer to an entity directly or indirectly controlled, controlling, or under
common control with Tenant.  For purposes
of this clause (b), “control” shall mean possession of more than 50
percent ownership of the shares of beneficial interest of the entity in
question together with the power to control and manage the affairs thereof
either directly or by election of directors and/or officers;


 


(c) Any
initial public offering of Tenant or private placement of Tenant.


 


Notwithstanding anything to
the contrary set forth in this Section 13.01, Landlord shall waive the
requirement for “prior notice” of any Permitted Transfer that is part of a
transaction that is subject to a bona fide, arms’ length confidentiality
agreement preventing the disclosure of such Transfer if, and only if, Tenant provides
the materials required by this Section 13.01 to Landlord within 10 days
following such Permitted Transfer.


 


13.02.                                 Landlord’s
Consent.  Tenant’s request for
Landlord’s consent to any Transfer shall describe the details of the proposed
Transfer, including the name, business and financial condition of the
prospective Transferee, and the financial terms of the proposed Transfer (e.g.,
term, rent and security deposit); Tenant shall also provide any other
information Landlord reasonably deems relevant Landlord shall not unreasonably
withhold its consent, but it shall not be deemed unreasonable for Landlord to
deny consent for the following reasons: (i) the business of the proposed
Transferee and the proposed use of the Premises are inconsistent with the Permitted
Uses; (ii) reasonable dissatisfaction with the net worth and financial
condition of the proposed Transferee as it relates to such Transferee’s
proposed obligations if such Transfer is for more than ten (10) percent of
the Premises; (iii) Tenant’s compliance with all of its obligations under
this Lease; and (iv) such other factors as Landlord may reasonably deem
relevant.


 


43

















 


Subject to the next
sentence, Tenant shall not offer to make, or enter into negotiations with
respect to an assignment, sublease or transfer to: (1) any tenant at the
Property or entity directly or indirectly controlled by, controlling, or under
the common control with, any other tenant at the Property, unless there is no
competing space then available to be offered for lease by Landlord at the
Property; or (ii) any party then negotiating with Landlord to lease other
space at the Property, unless there is no competing space then available to be
offered for lease by Landlord at the Property. 
It shall not be a breach of this Lease for Tenant to offer to make, or
enter into negotiations with, an entity not actually known by it to be covered
by clauses (i) or (ii) above, provided that it shall not be
unreasonable for Landlord to disapprove any proposed assignment, sublet or
transfer to any of the foregoing entities under such circumstances and for such
reasons, and if Tenant unknowingly makes an offer or enters into negotiations
with any of the foregoing, Tenant shall withdraw the offer and terminate
negotiations immediately upon written notice from Landlord that the provisions
of this paragraph are applicable.


 


At Landlord’s election,
Tenant shall pay to Landlord as Additional Rent fifty percent (50%) of the
Profits on any Transfer other than a Permitted Transfer as and when received by
Tenant, unless Landlord notifies Tenant and the Transferee that the Transferee
shall pay Landlord’s share of the Profits directly to Landlord.  “Profits” means (A) all rent, fees and
other consideration paid for or in respect of the Transfer, including fees in
excess of reasonable amounts under any collateral agreements (the intent being
to prohibit Tenant from shifting occupancy costs to collateral agreements),
less (B) the rent and other sums payable under this Lease (or if the
Transfer is a sublease of part of the Premises, allocable to the subleased
premises) and all reasonable costs and expenses directly incurred by Tenant in
connection with such Transfer, including without limitation for reasonable real
estate broker’s commissions and reasonable costs of renovation or construction
of tenant improvements required by the Transfer, and reasonable legal
fees.  Tenant may recover these reasonable
costs and expenses before paying Profits to Landlord.  Tenant shall give Landlord a written
statement certifying all amounts to be paid from any Transfer (including any
collateral agreements) within thirty (30) days after the transfer agreement is
signed and from time to time thereafter on Landlord’s request, and Landlord may
inspect Tenant’s books and records to verify the accuracy of such
statements.  On written request, Tenant
shall promptly furnish to Landlord copies of all Transfer documents, certified
by Tenant to be complete, true and correct.


 


13.03.                                 No
Release of Tenant.  No Transfer
shall release Tenant or change Tenant’s primary liability to pay Rent and to
perform all of Tenant’s obligations under this Lease.  If any Transferee defaults under this Lease,
Landlord may proceed directly against Tenant without pursuing remedies against
the Transferee.  Landlord’s acceptance of
Rent from any other person shall not waive any provision of this Article 13.


 


13.04.                                 Offer
to Terminate.  Before any
Transfer that, when aggregated with all prior Transfers then in effect, would
result in the total rentable square footage of the Premises subject to
Transfers being equal to at least 25 percent of the rentable square footage of
the Premises, Tenant shall offer Landlord in writing the right to terminate
this Lease with respect to such portion of the Premises subject to the proposed
Transfer as of a future date specified in the offer and prior to the proposed
Transfer.  If within twenty (20) days
after receiving such offer Landlord elects in writing to accept it this Lease
shall terminate with respect to such portion of the Premises subject to the
proposed Transfer as of the specified date. 
If Landlord does not 


 


44

















 


accept the offer within the
twenty (20) day period, Tenant may proceed with the Transfer, subject to the
other requirements of this Article 13.


 


13.05.                                 Determination
of Rent.  The amount of any rent or
other payment for the use or occupancy of all or any part of the Premises, by
sublease, license, assignment of this Lease or otherwise, shall not depend, in
whole or in part, on the income or profits derived by any person or entity from
the Premises other than an amount based on a fixed percentage or percentages of
gross receipts or sales.


 


ARTICLE 14:   EVENTS
OF DEFAULT AND REMEDIES


 


14.01.                                 Covenants
and Conditions.  Tenant’s
performance of each of its obligations under this Lease is a condition as well
as a covenant Tenant’s right to continue in possession of the Premises is
conditioned upon such performance.  Time
is of the essence in Tenant’s performance of all covenants and conditions.


 


14.02.                                 Defaults.  Each of the following in an “Event
of Default” under this Lease:


 


14.02(a)  Tenant fails
to pay Rent within ten (10) days after written notice; provided that
Landlord shall not be obligated to give any further such notice if Landlord
gives more than one (1) written notice of Tenant’s failure to pay rent on
time in any twelve-(12)-month period.


 


14.02(b)  Tenant fails
to perform its obligations under Section 7.02 or Section 10.05(e) within
the notice and cure period given there.


 


14.02(c)  Tenant fails
to perform any of its other obligations under this Lease and such failure
continues for a period of thirty (30) days after notice from Landlord or such
longer period as may be necessary to cure said default if Tenant commences to
cure said default within said thirty-day period and diligently completes the
cure within ninety (90) days of the initial default.


 


14.02(d)   (i) Tenant or any Guarantor makes a
general assignment or general arrangement for the benefit of creditors; (ii) a
petition for adjudication of bankruptcy or for reorganization or rearrangement
is filed by Tenant or any Guarantor; (iii) such a petition is filed
against Tenant or any Guarantor and is not dismissed within sixty (60) days; or
(iv) a trustee or receiver is appointed to take possession of
substantially all of Tenant’s or such Guarantor’s assets, of substantially all
of Tenant’s assets at the Property or of Tenant’s interest in this Lease and
such appointment is not dissolved within sixty (60) days.


 


If a court of competent
jurisdiction determines that any of the acts described in Section 14.02(d) is
not a default under this Lease, and a trustee or Tenant as debtor in possession
assigns, subleases or transfers Tenant’s interest in this Lease, Landlord shall
receive, as Additional Rent, the excess, if any, of the rent (or any other
consideration) paid in connection with such assignment, transfer or sublease
over the Rent payable by Tenant under this Lease.


 


14.02(e) Any
Guarantor of this Lease shall fail to perform any of its obligations under the
guaranty given by such Guarantor in favor of Landlord, and such failure shall
continue for thirty (30) days after notice from Landlord.


 


45

















 


14.02(e)  Tenant shall
abandon or vacate the Premises provided, however, that this clause shall not
apply so long as the Premises shall be arranged, and furnishing, lighting, and
cleaning provided, in a manner such that the Premises appear, from all points
exterior to the Premises from which the interior of the Premises are visible to
be continuously occupied for the Permitted Uses.


 


14.03.                                 Remedies.  At any time after any Event
of Default occurs, Landlord may, with or without notice or demand (except as
provided in Section 14.02) and without limiting any other right or remedy:


 


14.03(a)  Terminate
this Lease by written notice to Tenant or by entry, at Landlord’s option.  Tenant shall then immediately quit and
surrender the Premises to Landlord but shall remain liable as described
below.  Following termination, without
prejudice to any other remedies, Landlord may (i) peaceably reenter the
Premises upon Tenant’s voluntary surrender or remove Tenant and any other
persons from the Premises using any available legal proceedings; (ii) repossess
the Premises or re-let the Premises or any part thereof, for such term (which
may extend beyond the Lease Term), at such rental and upon such other terms and
conditions as Landlord in its sole discretion shall determine, with the right
to make alterations and repairs to the Premises, to re-let the Premises as part
of a larger area and to change its character or use and (iii) remove all
Tenant’s personal property therefrom.


 


Following termination,
Landlord shall have all the rights and remedies of a landlord provided at law
and in equity.  After obtaining actual
possession of the Premises, Landlord shall make commercially reasonable efforts
to re-let the Premises or any part of the Premises as described in clause (ii) above.  Tenant shall pay Landlord damages including
all Rent unpaid up to the termination of this Lease and all costs and expenses
incurred by Landlord due to such Event of Default.  In addition, Tenant shall pay Landlord as
damages either:


 


(x)                                   the discounted
present value (at the then current Federal Reserve Bank discount rate) of the
aggregate Rent and other charges, including all consideration Tenant agreed to
pay or perform due beginning on the date of termination through the expiration
date of this Lease, less Landlord’s reasonable estimate of net rent to be
received on re-letting the Premises, after deducting reasonable expenses
incurred or paid by Landlord in terminating this Lease and reasonable costs of
re-letting, including without limitation altering and preparing the Premises
for new tenants, brokers’ commissions, legal fees and all other expenses
properly chargeable against the Premises and its rental; or


 


(y)                                 amounts equal
to the Rent and other charges (including the considerations described in clause
(x)) which would have been payable by Tenant had this Lease or Tenant’s right
to possession not been terminated, which Tenant shall pay on the due dates
specified in this Lease through its expiration date; provided, however, that if
Landlord re-lets the Premises during such period, Landlord shall credit Tenant
with the rents as and when received by Landlord from such re-letting, less the
expenses and costs referred to in clause (x) above; and 


 


46

















 


provided, further, that (a) Tenant shall not be entitled to
receive any excess of such net rents over the sums payable by Tenant to
Landlord hereunder and (b) Tenant shall not be entitled in any suit for
the collection of damages pursuant to this Subsection (y) to a credit in
respect of any net rents from a re-letting except to the extent that such net
rents are actually received by Landlord. 
If the Premises or any part thereof is re-let in combination with other
space, proper apportionment on a square foot area basis shall be made of the
rent received from such re-letting and of the expenses of re-letting.


 


Landlord may bring a suit or suits for recovery of such damages, or any
installments from time to time at its election, and nothing in this Lease
requires Landlord to postpone suit until the Term would have expired if it had
not been terminated.


 


14.03(b)  Maintain
Tenant’s right to possession, in which case this Lease shall continue in effect
whether or not Tenant has abandoned the Premises.  In such event, Landlord shall be entitled to
enforce all of its rights and remedies under this Lease, including the right to
recover Rent as it becomes due.


 


14.03(c)  Pursue any
other remedy now or hereafter available to Landlord under the laws or judicial
decisions of the state in which the Property is located.


 


14.04.                                 Automatic
Termination; Damages.  This Lease
shall terminate on the occurrence of any act which affirms Landlord’s intention
to terminate this Lease as provided in Section 14.03, including filing an
unlawful detainer action against Tenant On termination, Landlord’s damages for
default shall include all costs and fees, including reasonable attorneys’ fees,
that Landlord shall incur in connection with filing, commencing, pursuing
and/or defending any action in any bankruptcy court or other court with respect
to this Lease, obtaining relief from any stay in bankruptcy that restrains any
action to evict Tenant or pursuing any action with respect to Landlord’s right
to possession of the Premises.  All such
damages suffered (apart from Base Rent and Additional Rent payable hereunder)
prior to any such filing or petition shall constitute pecuniary damages which
shall be reimbursed to Landlord prior to assumption of the Lease by Tenant or
any successor to Tenant in any bankruptcy or other proceedings.


 


14.05.                                 Cumulative
Remedies.  Except as
otherwise expressly provided herein, any and all rights and remedies which
Landlord may have under this Lease and at law and equity shall be cumulative
and shall not be deemed inconsistent with each other, and Landlord may exercise
one or more of such rights and remedies at the same time to the greatest extent
permitted by law.


 


14.06.                                 Cross-Default.
Tenant agrees that, so long as the Landlord is the landlord, or an
affiliate of the landlord, under the 301 Binney Lease, any Event of Default by
the tenant under the 301 Binney Lease (as it may be amended from time to time)
shall also constitute an Event of Default under the Lease.


 


47














 


ARTICLE 15:   SECURITY
DEPOSIT.


 


Within three (3) Business
Days of the execution of this Lease by Landlord and Tenant, Tenant shall
deliver to Landlord a clean, irrevocable, freely transferable letter of credit
substantially in the form attached as Exhibit C (the “Letter of Credit”)
in the amount set forth in Section 1.14 as security for the payment of all
Rent and the performance and observance of the agreements and conditions in
this Lease contained on the  art of
Tenant to be performed and observed.


 


Simultaneously with the
execution of this Lease, Tenant shall deliver to Landlord evidence reasonably
satisfactory to Landlord that Silicon Valley Bank is prepared to issue the
Letter of Credit in a form previously approved by Landlord.  Tenant’s failure to deliver the Letter of
Credit within the time period set forth in this paragraph shall be deemed an
Event of Default for which there is no cure period.


 


The Letter of Credit, if not
in the form attached hereto as Exhibit C, must in all cases be in
form and substance acceptable to Landlord and any mortgage lender, as security
for Tenant’s obligations under this Lease, and issued by a commercial bank,
trust company or national banking association, which has outstanding,
unsecured, uninsured and unguaranteed indebtedness, or shall have issued a
letter of credit or other credit facility that constitutes the primary security
for an outstanding indebtedness (which is otherwise uninsured and
unguaranteed), that is then (and thereafter continues to be) rated, without
regard to qualification of such rating by symbols such as “+” or “-” or
numerical notation “A” or better by Moody’s Investment Service (or its successor)
or “A” or better by Standard & Poor’s Ratings Service (or its
successor) (and is not on credit-watch or similar credit review with negative
implication), and has combined capital, surplus and undivided profits of not
less than $1,000,000,000.  In the event
the issuer of the Letter of Credit is downgraded so that it no longer satisfies
the rating requirements set forth in this Article 15, Landlord shall have
the right, to require Tenant to procure a replacement Letter of Credit from an
issuer that satisfies the requirements of this Article 15 within fifteen
(15) days after Landlord notifies Tenant of such requirement; provided that
Landlord shall cooperate with Tenant in exchanging the existing Letter of
Credit for the new Letter of Credit so that Tenant is not required to have two
Letters of Credit outstanding simultaneously. 
The Letter of Credit shall be renewed at least 60 days prior to its
expiration from time to time, and, if not so renewed, Landlord or its mortgage
lender may draw all or a portion of the letter of credit and hold the proceeds
as set forth below, but in that event, Tenant shall, upon demand, provide
Landlord with a new Letter of Credit meeting the requirements of this Lease, in
lieu of such cash, and upon receipt of such replacement Letter of Credit,
Landlord shall promptly return such cash security deposit to Tenant.  Notwithstanding the foregoing, the Letter of
Credit to be delivered by Tenant for the final period before the expiration of
the Term of this Lease shall be for a term ending not sooner than ninety-five
(95) days after the expiration of the Term of this Lease.


 


If, and as soon as, there
shall exist an Event of Default (and on the occasion of each Event of Default
if there shall be more than one), Landlord may draw upon the Letter of Credit
at any time and from time to time in such amount or amounts as may be necessary
to cure the Event of Default(s) or to reimburse Landlord for any sum(s) which
Landlord may have spent to cure the Event of Default(s), and if Landlord has
terminated this Lease due to Tenant’s Event of 


 


48

















 


Default(s), Landlord may
also draw upon the Letter of Credit in such amount (or all) as may be necessary
to obtain any amounts from time to time owed to Landlord by Tenant after termination.  In the case of each such drawing (except a
drawing occurring after termination or expiration of this Lease), Tenant shall
promptly, on demand, cause the existing Letter of Credit to be amended to be
once again in the full amount required under this Lease or a new Letter of
Credit, in the amount so drawn, to be issued to Landlord.  Following such partial draws and receipt of
such amended Letter of Credit, Landlord shall return the Letter of Credit to
the Escrow Agent.  Notwithstanding the
foregoing, Landlord shall have the right, at any time when an Event of Default
exists, to draw the entire Letter of Credit and hold the proceeds thereof to be
applied from time to time against damages and losses under this Lease, but in
that event, if Landlord does not terminate this Lease as a result of such Event
of Default and permits (without implying any obligation to permit) Tenant to
cure all outstanding Events of Default, so long as no new Event of Default
occurs within sixty (60) days thereafter, Tenant shall be permitted to replace
the cash security deposit with a Letter of Credit, and upon receipt of the
Letter of Credit, Landlord shall release the cash security deposit to
Tenant.  Any amount drawn by Landlord
shall not be deemed to fix or determine the amounts to which Landlord is
entitled under this Lease or otherwise, and Landlord shall be entitled to
pursue any remedies provided for in this Lease to the extent Landlord is unable
or elects, in its sole and absolute discretion, not to obtain complete or
partial satisfaction by drawing upon the Letter of Credit.  If at the end of the Term of this Lease no
default of Tenant shall exist, or if such a default shall exist, upon cure of
such default, the Letter of Credit, or any cash held in lieu thereof, shall be
returned to Tenant within thirty (30) days thereafter.  For purposes of this Article, an Event of
Default shall also include any default that is prevented or delayed from
ripening into an Event of Default due to Landlord’s inability to give any required
notice or the tolling of any grace or cure period caused by any stay or injunction
arising from the bankruptcy of Tenant.


 


Landlord shall not commingle
any cash constituting the security deposit with other funds of Landlord, and
Landlord shall pay reasonable interest on any cash security deposit to
Tenant.  If Landlord conveys Landlord’s
interest under this Lease, the Letter of Credit (or cash in lieu thereof) shall
be turned over by Landlord to Landlord’s transferee, and, if so turned over,
Tenant agrees to look solely to such transferee for proper application thereof
in accordance with the terms of this Lease and the return thereof in accordance
therewith, and it is agreed that the provisions hereof shall apply to every
transfer or assignment made of the Letter of Credit to a new landlord.  If Landlord does not so turn over the Letter
of Credit (or any cash held in lieu thereof) to its successor (including any
lender or ground lessor succeeding to the interest of Landlord), then such
successor Landlord shall not be entitled to require Tenant to post any new Letter
of Credit (or cash in lieu thereof) except to the extent that such failure to
turn over the Letter of Credit or cash held in lieu thereof is due to the
drawing on such Letter of Credit or cash in accordance with the terms of this
Lease.  Upon the request of Landlord,
from time to time, Tenant shall make arrangements satisfactory to Landlord in
its reasonable discretion for the transfer of the Letter of Credit, at Tenant’s
sole cost and expense to any successor landlord or mortgagee of the Property,
and from any such mortgagee to Landlord or any successor mortgagee, provided
that the transferee agrees in writing to hold and apply the Letter of Credit in
accordance with the terms hereof.  Notwithstanding
anything in the foregoing sentence to the contrary, Landlord shall reimburse
Tenant for the one hundred percent (100%) of the transfer fee for the second
such transfer up to a maximum of $2,500 and fifty percent (50%) of the transfer
fee for subsequent transfers up to a maximum of $1,250 in each case promptly
upon demand.  


 


49

















 


Tenant shall not assign or
encumber or attempt to assign or encumber the Letter of Credit and neither
Landlord nor its successors or assigns shall be bound by any such assignment,
encumbrance or attempted assignment or encumbrance.  Upon ten (10) Business Days’ prior
written notice from Landlord, Tenant shall cause the Letter of Credit to be
modified so that it names any mortgagee as a co-beneficiary.  Tenant shall provide any documentation
reasonably requested by Landlord’s mortgagee to evidence such mortgagee’s
collateral interest in the Letter of Credit, provided, however, that Tenant
shall not be required to incur any material out-of-pocket costs to do so.


 


ARTICLE 16:   PROTECTION
OF LENDERS/GROUND LANDLORD


 


16.01.                                 Subordination
and Nondisturbance.


 


(a)                                  The interest of
Tenant hereunder shall be subordinate to the rights of any holder of a mortgage
or holder of a ground lease of property that includes the Premises and executed
and recorded subsequent to the date of this Lease, unless such holder shall
otherwise so elect, and in any event provided that such holder shall agree to
recognize in writing the right of the Tenant to use and occupy the Premises and
exercise and enjoy all of its other rights under this Lease upon the payment of
Rent and the performance by the Tenant of the Tenant’s obligations hereunder
(within applicable grace and cure periods) (but without any assumption by such
holder of the Landlord’s obligations under this Lease which relate to periods
prior to the date such holder acquired title to or took possession of the
Premises); or


 


(b)                                 If any holder
of a mortgage or holder of a ground lease of property which includes the
Premises, originally given to an institutional lender, shall so elect, this
Lease, and the rights of the Tenant hereunder, shall be superior in right to
the rights of such holder, with the same force and effect as if this Lease had
been executed and delivered, and recorded, or a statutory notice hereof recorded,
prior to the execution, delivery and recording of any such mortgage.


 


Any election as to
Subsection (b) above shall become effective upon notice from such holder
to the Tenant in the same fashion as notices from the Landlord to the Tenant
are to be given hereunder and by the recording in the appropriate registry or
recorder’s office of an instrument, in which such holder subordinates its
rights under such mortgage or ground lease to this Lease.


 


In the event any holder
shall succeed to the interest of Landlord, the Tenant shall, and does hereby
agree to attorn to such holder and to recognize such holder as its Landlord and
Tenant shall promptly execute and deliver any instrument that such holder may
reasonably request to evidence such attornment provided such document contains
reasonably satisfactory non-disturbance provisions to allow Tenant to remain in
occupancy pursuant to this Lease and exercise and enjoy all of its other rights
under this Lease as long as no Event of Default exists.  The form of instrument attached as Exhibit K
shall 


 


50

















 


be deemed acceptable to
Tenant.  Upon such attornnent, the holder
shall not be: (i) liable in any way to the Tenant for [illegible]


 


16.02.                                 [illegible]


 


16.03.                                 [illegible]


 


under the Ground Lease
(including, without limitation, Landlord’s remedies in the event of casualty or
condemnation).


 


16.04.                                 Signing
of Documents.  Tenant shall
sign and deliver any instrument or documents necessary or appropriate to
evidence any such attornment or subordination or agreement.


 


16.05.                                 Estoppel
Certificates.  Within twenty
(20) days after Landlord’s request, Tenant shall execute, acknowledge and
deliver to Landlord a written statement certifying that: (i) none of the
terms or provisions of this Lease have been changed (or if they have been
changed, stating how); (ii) that this Lease has not been canceled or
terminated; (iii) the last date of payment of Base Rent and other charges
and the tune period covered; (iv) that to the best of Tenant’s knowledge,
Landlord is not in default under this Lease (or if Tenant states that Landlord
is in default, describing it in reasonable detail); and (v) such other
information with respect to Tenant or this Lease as Landlord may reasonably
request or which any prospective purchaser or encumbrances of the Property may
require.  Landlord may deliver any such
statement by Tenant to any such prospective purchaser or encumbrances, which
may rely conclusively upon such statement as rue and correct.  If Tenant does not deliver such statement to
Landlord within such twenty-(20)-day period, Landlord, and any such prospective
purchaser or encumbrances, may conclusively presume and rely upon the following
facts: (i) that the terms and provisions of this Lease have not been
changed except as represented by Landlord; (ii) that this Lease has not
been canceled or terminated except as otherwise represented by Landlord; (iii) that
not more than one month’s Base Rent or other charges have been paid in advance;
and (iv) that to the best of Tenant’s knowledge, Landlord is not in
default under this Lease.  In such event,
Tenant shall be estopped from denying the truth of such facts.


 


Within twenty (20) days
after Tenant’s request, Landlord shall execute, acknowledge and deliver to
Tenant if required by a third party certifying: (i) that none of the terms
or provisions of this Lease have been changed (or if they have been changed,
stating how); (ii) that this Lease has not been canceled or terminated; (iii) the
last date of payment of Base Rent and other charges received by Landlord and
the time period covered; (iv) that to the best of Landlord’s knowledge,
Tenant is not in default under this Lease (or if Landlord states that Tenant is
in default, describing it in reasonable detail); and (v) such other
information with respect to Landlord or this Lease as is reasonably required
and relied upon by such third party. 
Tenant may deliver any such statement by Landlord to any such third
party, which may rely conclusively upon such statement as rue and correct.  If Landlord does not deliver such statement
to Tenant within such twenty-(20)-day period, Tenant, and any such third party
may conclusively presume and rely upon the following facts: (i) that the
terms and provisions of this Lease have not been changed except as represented
by Tenant; (ii) that this Lease has not been canceled or terminated except
as otherwise represented by Tenant; and (iii) that to the best of Landlord’s



 


51

















 


knowledge, Tenant is not in
default under this Lease.  In such event,
Landlord shall be estopped from denying the truth of such facts.


 


Section 16.06.  Tenant’s Financial
Condition.  Unless Tenant’s
annual and quarterly financial reports are publicly available, and except during
any quiet, non-disclosure or confidentiality period with respect to any
securities offering to the extent applicable to disclosure to Landlord pursuant
to the regulations of the Securities and Exchange Commission or any major
nationally recognized listing service or stock exchange on which Tenant is
listed (as reasonably evidenced to Landlord by Tenant), Tenant, within twenty
(20) days after request from Landlord from time to time, shall deliver to
Landlord Tenant’s annual audited financial statements for the latest available
two (2) fiscal years, including the year ending no more than eighteen (18)
months prior to Landlord’s request, and an unaudited financial statement dated
no more than twelve (12) months prior to Landlord’s request, and quarterly financial
statements certified in writing by Tenant’s Chief Financial Officer.  Landlord may deliver such financial
statements to its mortgagees and lenders and prospective mortgagees, lenders
and purchasers.  Tenant represents and
warrants to Landlord that each such financial statement shall be true and
accurate as of its date.  Except for
publicly available information, financial statements shall be confidential and
shall be used only for the purposes set forth in this Section 16.06.  If Tenant is publicly traded company, it
shall give Landlord its most recently filed annual and quarterly reports on
request.


 


ARTICLE 17:   MISCELLANEOUS
PROVISIONS


 


17.01.                                 Landlord’s
Consent Fees.  In addition to
fees and expenses in connection with Tenant Work, as described in Section 10.05,
Tenant shall pay Landlord’s reasonable fees and expenses, including legal,
engineering and other consultants’ fees and expenses, incurred in connection
with Tenant’s request for Landlord’s consent under Article 13 (Assignment
and Subletting) or in connection with any other act by Tenant which requires
Landlord’s consent or approval under this Lease.


 


17.02.                                 Notice
of Landlord’s Default.  Tenant shall
give notice of Landlord’s failure to perform any of its obligations under this
Lease to Landlord, and to any mortgagee or beneficiary under any deed of trust
encumbering the Property whose name and address have been given to Tenant
Landlord shall not be in default under this Lease unless Landlord (or such
mortgagee or beneficiary) fails to cure such non-performance within thirty (30)
days after receipt of Tenant’s notice. 
However, if such non-performance requires more than thirty (30) days to
cure, landlord shall not be in default if such cure is begun within such thirty
(30) day period and diligently completed (but in any event no more than ninety
(90) days.  In no event shall Landlord be
liable for indirect or consequential damages arising out of any default by
Landlord under this Lease.


 


17.03.                                 Quiet
Enjoyment.  Landlord agrees
that, so long as (i) Tenant is not in default under the terms of this
Lease and (ii) this Lease is in full force and effect, Tenant shall
lawfully and quietly hold, occupy and enjoy the Premises during the Term of
this Lease without disturbance by Landlord or by any person claiming through or
under Landlord, subject to the terms of this Lease.


 


52

















 


17.04.                                 Severability.  A determination by a court
of competent jurisdiction that any provision of this Lease is illegal or unenforceable
shall not cancel or invalidate any other provision of this Lease, which shall
remain in full force and effect.


 


17.05.                                 Interpretation.  In any provision relating to
the conduct, acts or omissions of Tenant, the term “Tenant” includes Tenant’s
agents, employees, contractors, invitees, successors or others using the
Premises with Tenant’s expressed or implied permission.  In any provision relating to the conduct,
acts or omissions of Landlord, the term “Landlord” includes Landlord’s agents,
employees, contractors, and invitees. 
The term “Term” includes any extensions of the Initial Term.  The word “including” as used in this Lease
shall mean “including without limitation.”


 


17.06.                                 Incorporation
of Prior Agreements; Modifications.  This Lease is
the only agreement between the parties pertaining to the lease of the Premises,
and no other agreements shall be effective. 
All amendments to this Lease shall be in writing and signed by all
parties.


 


17.07.                                 Notices.  All notices, requests and
other communications required under this Lease shall be in writing, addressed
as specified in Article 1, and shall be (i) personally delivered, (ii) sent
by certified mail, return receipt requested, postage prepaid, (iii) delivered
by a national overnight delivery service which maintains delivery records or (iv) sent
by telecopier or facsimile machine (“fax”) which automatically generates a
transmission report, with a copy also sent as described in clause (i), (ii) or
(iii).  All notices shall be effective
upon delivery (or refusal to accept delivery); provided, however, that notice
by fax or telecopy shall be effective when transmitted or, if after 5 p.m.
or on a non-Business Day, on the next Business Day.  Either party may change its notice address
upon written notice to the other party; any Guarantor may change its notice
address upon written notice to Landlord.


 


17.08.                                 Waivers.  All waivers shall be in
writing and signed by the waiving party. 
Landlord’s failure to enforce any provision of this Lease or its
acceptance of Rent shall not be a waiver and shall not prevent Landlord from
enforcing that provisioner any other provision of this Lease in the
future.  Tenant’s failure to enforce any
provision of this Lease shall not be a waiver and shall not prevent Tenant from
enforcing that provision or any other provision of this Lease in the future.  No statement on a payment check from Tenant
or in a letter accompanying a payment check shall be binding on Landlord.  Landlord may, with or without notice to
Tenant, negotiate such check without being bound by the conditions of such
statement Landlord and Tenant shall and hereby do waive trial by jury in any
action, proceeding or counterclaim brought by either of the parties hereto
against the other in any matter arising out of or in any way connected with
this Lease, the relationship of Landlord and Tenant, Tenant’s use or occupancy
of the Premises, any claim of injury or damage and any emergency or any other
statutory remedy.  Tenant shall not
interpose any non-mandatory counterclaim or counterclaims in a summary
proceeding or in any action based on non-payment of Base Rent or Additional
Rent.


 


17.09.                                 No
Recordation.  Tenant shall
not record this Lease.  Either Landlord
or Tenant may require that a statutory notice, short form or memorandum of this
Lease executed by both parties be recorded. 
Tenant may record any Subordination, Non-Disturbance and Attornment Agreement
(“SNDA”) (notifying Landlord of the date and book and page number)
or request 


 


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Landlord to record it on
Tenant’s behalf The party requesting or requiring such recording shall pay all
expenses, transfer taxes and recording fees.


 


17.10.                                 Bind
and Inure; Choice of Law.  The obligations
of this Lease shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns; provided, however, that
Landlord shall have no obligation to Tenant’s successor or assign unless the
rights or interests of such successor or assign are acquired in accordance with
this Lease.  The laws of the state in
which the Property is located shall govern this Lease.


 


17.11.                                 Corporate
Authority.  If Tenant is a
business entity, then Tenant warrants and represents that (a) Tenant is
duly organized, validly existing and in good standing under the laws of the
jurisdiction in which such entity was organized; (b) Tenant has the
authority to own its property and to carry on its business as contemplated
under this Lease; (c) to the best of Tenant’s knowledge, Tenant is in
compliance with all material laws and orders of public authorities applicable
to Tenant; (d) Tenant has duly executed and delivered this Lease; (e) the
execution, delivery and performance by Tenant of this Lease (i) are within
the powers of Tenant, (ii) have been duly authorized by all requisite
action, (iii) will not violate any provision of law or any order of any
court or agency of government, or any agreement or other instrument to which
Tenant is a party or by which it or any of its property is bound, and (iv) will
not result in the imposition of any lien or charge on any of Tenant’s property,
except by the provisions of this Lease; and (f) the Lease is a valid and
binding obligation of Tenant.  Tenant, if
a business entity, agrees that breach of the foregoing warranty and
representation shall at Landlord’s election be a default under this Lease for
which there shall be no cure.  This
warranty and representation shall survive the termination of the Term.


 


Landlord represents and
warrants that (a) Landlord is duly organized, validly existing and in good
standing under the laws of the jurisdiction in which such entity was organized;
(b) Landlord has the authority to own its property and to carry on its
business as contemplated under this Lease; (c) Landlord has duly executed
and delivered this Lease; (d) the execution, delivery and performance by
Landlord of this Lease (i) are within the powers of Landlord, (ii) have
been duly authorized by all requisite action, (iii) will not violate any
provision of law or any order of any court or agency of government, or any
agreement or other instrument to which Landlord is a party or by which it or
any of its property is bound, and (iv) will not result in the imposition
of any lien or charge on any of Landlord’s property, except by the provisions
of this Lease; and (c) the Lease is a valid and binding obligation of
Landlord in accordance with its terms. 
This warranty and representation shall survive the termination of the
Term.


 


17.12.                                 Joint
and Several Liability.  If more than
one party signs this Lease as Tenant, they shall be jointly and severally
liable for all obligations of Tenant.


 


17.13.                                 Force
Majeure.  If Landlord or Tenant cannot
perform any of its obligations (other than the inability to make payments when
due) due to events beyond its reasonable control, the time provided for
performing such obligations shall be extended by a period of time equal to the
duration of the events.  Events beyond a
party’s reasonable control include acts of God, war, civil commotion, labor
disputes, strikes, fire, flood or other casualty, shortages of labor or material,
government regulation or restriction and weather conditions (any of the
foregoing shall 


 


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constitute “Force Majeure”).  Notwithstanding the foregoing, no event of
Force Majeure shall be deemed to continue for a period of longer than 180 days.


 


17.14.                                 Execution
of Lease.  Submission of
this Lease to Tenant shall not constitute an option or offer to lease, and this
Lease shall not be effective until it is executed and delivered by Landlord and
Tenant.  This Lease may be executed in
counterparts and, when all counterpart documents are executed, the counterparts
shall constitute a single binding instrument.


 


17.15.                                 Survival.  All representations and
warranties of Landlord and Tenant shall survive the termination of this Lease.


 


17.16.                                 Limitation
of Warranties.  Landlord and
Tenant expressly agree that there are and shall be no implied warranties of
merchantability, habitability, suitability, fitness for a particular purpose or
of any other kind arising out of this Lease, except as expressly set forth
herein and there are no warranties which extend beyond those expressly set
forth in this Lease.


 


17.17.                                 No
Other Brokers.  Landlord and
Tenant represent and warrant to each other that the brokers named in Article 1
are the only agents, brokers, finders or other parties with whom such party has
dealt who may be entitled to any commission or fee with respect to this Lease
or the Premises or the Property. 
Landlord and Tenant agree to indemnify and hold the other harmless from
any claim, demand, cost or liability, including attorneys’ fees and expenses,
asserted by any party other than the brokers named in Article 1 based upon
dealings of that party with the indemnifying party.  Landlord shall be responsible for the payment
of any brokerage fees to the brokers named in Article 1.


 


17.18.                                 Landlord’s
Consent.  Any consent or approval of
Landlord required by this Lease may be granted or withheld in Landlord’s sole
discretion, except as otherwise set forth in therein.


 


17.19.                                 Construction
on the Property or Adjacent Property.  Tenant
acknowledges that Landlord is undertaking major renovations and/or construction
in the Building, on the Property, and on property abutting the Property
(together, the “project”), and Landlord makes no warranty or covenant, express
or implied, concerning the operation or condition of the Building except as
expressly set forth herein.  Landlord
shall have the right, in connection with the development, redevelopment,
alteration, improvement, operation, maintenance, or repair of the Building,
and/or the Property, to subject the Land and Building to easements for the
construction, reconstruction, alteration, improvement, operation, repair or
maintenance of elements thereof, for access and egress, for parking, for the
installation, maintenance, repair, replacement or relocation of utilities
serving the Building and to subject the Land and the Building to such other
rights, agreements, and covenants for such purposes as Landlord may
determine.  Tenant hereby agrees that
this Lease shall be subject and subordinate to any such matters which do not
unreasonably interrupt Tenant’s use of the Premises.  The foregoing sentence shall be
self-operative, but Tenant hereby irrevocably appoints Landlord as Tenant’s
attorney-in-fact to execute, acknowledge and deliver any documents appropriate
to accomplish or confirm the same if Tenant fails to do so within ten (10) days
after request therefor.  Neither Tenant
nor any of its employees, agents, attorneys, consultants, subtenants,
assignees, or representatives (the “Tenant Parties”) shall take an
action to oppose the Project, nor shall the Tenant knowingly permit any Tenant
Parties to take any action in opposition to the Project.


 


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Landlord and its agents,
employees, licensees and contractors shall also have the right to enter on the
Land or Building to undertake work pursuant to any easement granted pursuant to
the above paragraph; to shore up the foundations and/or walls of the Building;
to erect scaffolding and protective barricades around, within or adjacent to
the Building; and to do any other act necessary for the safety of the Building
or the expeditious completion of such work. 
Landlord shall not be liable to Tenant for any compensation or reduction
of rent by reason of inconvenience or annoyance or for loss of business
resulting from any act by Landlord pursuant to this Section 17.19.  Landlord shall use reasonable efforts to
minimize the extent and duration of any inconvenience, annoyance or disturbance
to Tenant resulting from any work pursuant to this Section 17.19 in or
about the Building, consistent with accepted construction practice and in any
event shall not materially and adversely affect Tenant’s use of the Premises
for the Permitted Uses.


 


17.20.   Subscription Agreement.
Contemporaneously with the Second Amendment hereto, Landlord Entered into a
Subscription Agreement and the Third Amended and Restated Investors’ Rights
Agreement, as amended, and, in accordance with such agreement, Tenant issued to
Landlord 10,000 shares of Tenant’s Series C Preferred Stock on the terms
set forth therein.


 


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